Professional Documents
Culture Documents
Legal - Aspects
Legal - Aspects
PROTECTION OF RELIGIOUS
FREEDOM IN AUSTRALIA
1
This is an overview of certain legal issues drafted for the purposes of the Freedom of
Religion and Belief project in late 2008 and early 2009. A more detailed and up to date book
that covers some of the same issues discussed more briefly by the author in this paper will be
published by Federation Press in early 2011
1
TABLE OF CONTENTS
2
4.3 Prohibitions of Racial or Ethnic Discrimination........................................34
4.4 Exemptions from Non-Discrimination Law for Religious Organisations
and Individuals...........................................................................................35
4.4.1 Who is Entitled to the Benefit of the Religious Exemptions?.....36
4.4.2 How Far Do the Exemptions Extend?......................................3736
4.5 Are Amendments to the Discrimination Laws Required?.....................3938
5 Religious Freedom and Bills of Rights............................................................4241
5.1 Introduction............................................................................................4241
5.2 The Right to Freedom of Religion or Belief in the States and Territories
................................................................................................................4241
5.3 A Brief Comparison with Other Jurisdictions........................................4443
5.3.1 Religious Apparel Cases..........................................................4544
5.3.2 Property Rights and Religion...................................................4746
5.4 Should Religious Freedom and Non-Discrimination Be Protected in a
Commonwealth Bill of Rights?..............................................................4847
6 Religious Vilification / Hate Speech Laws......................................................4948
6.1 Introduction............................................................................................4948
6.2 Current Australian Legislation Prohibiting Religious Vilification........5049
6.2.1 The Prohibition........................................................................5049
6.2.2 Exceptions................................................................................5049
6.3 Case Law................................................................................................5150
6.3.1 Catch the Fire...........................................................................5150
6.3.2 Case-law on Constitutional Constraints...................................5352
6.4 Does the Commonwealth Need Religious Vilification Laws?..............5352
7 Religion in the Australian Courts: Some Key Issues.......................................5655
7.1 Introduction............................................................................................5655
7.2 Oaths / Affirmations...............................................................................5655
7.3 Religious Apparel and Appearance in Court.........................................6059
7.4 Other Issues............................................................................................6362
7.5 Intra-Religious Disputes and Religious Law in the Courts....................6463
7.5.1 Circumstances in which Courts become Involved in Religious
Disputes....................................................................................6564
7.5.2 Recognition of Religious Law in the Secular Courts...............6665
7.6 Conclusion..............................................................................................6766
8 Appendix: Extracts from Selected International Instruments on Religious
Freedom............................................................................................................6968
8.1 Human Rights Treaties...........................................................................6968
8.1.1 International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171, arts 2, 4, 18, 20,
24, 26, 27 (entered into force 23 March 1976) (‘ICCPR’)......6968
8.1.2 Convention Against Discrimination in Education, adopted on 14
December 1960, 429 UNTS 93, arts 1, 2, 5 (entered into force 22
May 1962)................................................................................7069
8.1.3 Convention on the Elimination of All Forms of Discrimination
Against Women, opened for signature 18 December 1979, 1249
UNTS 13, art 2 (entered into force 3 September 1981)
(‘CEDAW’)..............................................................................7271
8.1.4 Convention on the Rights of the Child, opened for signature 20
November 1989, 1577 UNTS 3, arts 2, 14, 20, 29 (entered into
force 2 September 1990) (‘CROC’).........................................7372
3
8.1.5 International Convention on the Elimination of All Forms of
Racial Discrimination, opened for signature 7 March 1966, 660
UNTS 195, art 5 (entered into force 4 January 1969) (‘ICERD’)
..................................................................................................7473
8.2 Human Rights Declarations...................................................................7473
8.2.1 Universal Declaration of Human Rights, GA Res 217A (III), UN
GAOR, 3rd sess, 183rd plen mtg, arts 2, 16, 18, 26, UN Doc
A/RES/217A (III) (1948).........................................................7473
8.2.2 Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or Belief, GA Res 36/55, 36
UN GAOR Supp (No 51), 36th sess, 73rd plen mtg, arts 1–8, UN
Doc A/36/684 (1981)...............................................................7574
8.2.3 Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities, GA Res 47/135,
annex, 47 UN GAOR Supp (No 49), arts 1, 2, 4, UN Doc A/47/49
(1992).......................................................................................7877
8.3 Human Rights Committee General Comments......................................7978
8.3.1 United Nations Human Rights Committee, General Comment No
22: The Right to Freedom of Though, Conscience and Religion
(Art 18), UN Doc CCPR/C/21/Rev.1/Add.4 (1993)................7978
8.3.2 United Nations Human Rights Committee, General Comment No
11: Prohibition of Propaganda for War and Inciting National,
Racial or Religious Hatred (Art 20), (Nineteenth session, 1983)
..................................................................................................8281
8.3.3 United Nations Human Rights Committee, General Comment No
23: The Rights of Minorities (Art 27), UN Doc
CCPR/C/21/Rev.1/Add.5 (1994).............................................8281
8.3.4 United Nations Human Rights Committee, General Comment No
18: Non-Discrimination, as contained in Compilation of General
Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006)......8483
4
1 INTRODUCTION AND EXECUTIVE SUMMARY
The protection of religious freedom in a given society depends on a range of factors,
including the degree of political and popular commitment to the principle of religious
freedom, and the legal and institutional arrangements for the protection of religious
freedom. If political and popular commitment to religious freedom is strong, legal
protections may not be as important as they would be in societies where religious
liberty is contested, or religious sectarianism or discrimination is rife.
This background paper does not attempt to assess the level of political and popular
commitment to religious freedom in Australia, or to draw a conclusion as to the extent
or severity of problems that religious individuals or organisations experience on the
ground. This is the role of the broader inquiry being undertaken for the Australian
Human Rights Commission.2 Instead, it focuses exclusively on the strength of the
current forms of legal protection available to religious individuals and organisations
in Australia, and on the way in which religion is treated in the Australian court
system.3
2
Although, for an important forerunner to the current inquiry and for evidence of problems
with religious freedom in practice in Australia, see Human Rights and Equal Opportunity
Commission, Article 18: Freedom of Religion and Belief (1998).
3
I would like to thank the following people for their assistance with the research and editing of
this report: Perry Herzfeld, Tiffany Wong, Harini Gayanika Amarasinghe and Jessica Qiu Chen
Liang.
5
religious (although the High Court has interpreted it to extend to atheism and
agnosticism at least). In addition, the High Court has interpreted s 116 very
restrictively so that it has little force.
6
religion or belief, particularly for religious minorities. Vilification on the basis of
religion can prevent people from exercising their religion freely for fear of threats,
intimidation or hostility. However, some concerns have also been raised with respect
the potential for such laws to be used to restrict vigorous criticism of religion and
regarding their potential to intrude on the religious freedom of those whose religion
requires them to condemn what they perceive as religious falsehoods. As with
discrimination law, the precise balance to be struck between the two legitimate sets of
interests is a matter of public policy rather than law. However, if such a law were to
be introduced at the Commonwealth level, there are good reasons for adopting the
international law conception of religious hate laws, rather than the definition used in
State legislation in Australia.
Secondly, the common law quite possibly does not protect religious freedom. In the
Grace Bible Church v Reedman (‘the Grace Bible Church Case’),4 the appellant (an
unregistered, non-government Christian school) argued that there was ‘an inalienable
right to religious freedom and that that freedom cannot be abridged by any statute of
the South Australian Parliament.’5 The appeal was dismissed unanimously by the Full
Court of the Supreme Court of South Australia, with Zelling J commenting that such a
claim would require ‘a complete rewriting of history’, given the numerous examples
of intersection between law, government and religion in the United Kingdom at the
time at which the common law was received in Australia. 6 White J likewise
concluded: ‘The common law has always recognised the supremacy of Parliaments …
and has never purported to prevent the Parliament from asserting and exercising an
absolute right to interfere with religious worship and the expression of religious
4
(1984) 36 SASR 376.
5
Ibid 377.
6
Ibid 379.
7
beliefs at any time that it liked.’7 Further, ‘the common law has never contained a
fundamental guarantee of the inalienable right of religious freedom and expression.’8
More recently, the Full Court of the Federal Court described ‘freedom of religious
belief and expression’ as an ‘important freedom generally accepted in Australian
society’, reflected in s 116 of the Australian Constitution and art 18 of the
International Covenant on Civil and Political Rights.9 This implies that religious
freedom has some status in the common law (in the context of this case, as a
reasonable basis on which freedom of political communication might be limited) but
does not amount to the recognition of religious freedom as a right protected by the
common law.10
1.3 CONCLUSION
Australia has taken on international obligations to protect freedom of religion or belief
and to prohibit discrimination on the basis of religion or belief. While there is some
protection given to religious freedom in the Australian Constitution, it is far from
comprehensive. Likewise, there is no comprehensive Commonwealth legislation that
protects religious freedom or prohibits discrimination on the basis of religion or
belief. There is a question mark over whether the common law does in fact protect
religious freedom and, even if it does, it is a weak protection. In summary, then,
Australia has only relatively weak constitutional and legal protection of freedom of
religion or belief and prohibition of discrimination on the basis of religion or belief.
7
Ibid 385.
8
Ibid 388.
9
Evans v New South Wales (2008) 168 FCR 576, 596 [79] (French, Branson and Stone JJ).
10
See also Aboriginal Legal Rights Movement Inc v South Australia [No 1] (1995) 64 SASR
551 for a discussion of these issues.
8
2 INTERNATIONAL LEGAL PROTECTION OF FREEDOM OF
RELIGION OR BELIEF
2.1 INTRODUCTION
There are numerous international treaties, declarations and other instruments relevant
to the protection of religious freedom. Australia is a party to several such instruments
and thus has an obligation in international law to comply with them. While the
decisions of international bodies are not a substitute for thoughtful decisions within
Australia about the appropriate way to protect religious freedom in the Australian
context, they do provide a useful form of international benchmarking. In addition,
international treaties have implications for Australian law. While they do not directly
become part of Australian law, they do influence the interpretation of legislation and
the development of the common law. In addition, and perhaps most importantly for
the purposes of this report, they provide a basis which both permits the
Commonwealth to legislate on matters relating to religion and also provides
boundaries to the extent of that power.
9
Article 18 of the Universal Declaration is the key provision protecting freedom of
religion or belief. It reads:
Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.
Article 18 reads:
1. Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of his
choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance,
practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to
adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public safety,
order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the religious
and moral education of their children in conformity with their own convictions.
Article 18 is a more detailed provision for the protection of religious freedom than the
provision in the Universal Declaration. Some points of particular note in the
distinctions between the ICCPR and the Universal Declaration are as follows. The
unambiguous protection of the right to ‘change’ religion in the Universal Declaration
has been replaced with the less clear ‘have or adopt’ in the ICCPR, although the
consensus among scholars working in this area is that this formulation still includes
the right to change religion.16 In addition, a prohibition against coercion has been
the Child, opened for signature 20 November 1989, 1577 UNTS 3, arts 2, 14, 20, 29 (entered into
force 2 September 1990) (‘CROC’); Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities, GA Res 47/135, annex, 47 UN GAOR Supp (No 49),
arts 1–2, 4, UN Doc A/47/49 (1992).
15
ICCPR, above n Error: Reference source not found. The other was the International Covenant
on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3
(entered into force 3 January 1976).
16
See, eg, United Nations Human Rights Committee, General Comment 22: The Right to
Freedom of Thought, Conscience and Religion (Art 18), [5], UN Doc CCPR/C/21/Rev.1/Add.4
10
included. Both of these changes reflect some concern about missionary activities in
developing countries and the first also reflects some controversy in certain Muslim
countries about whether conversion out of Islam is permitted. 17 If religious freedom is
to be protected in Australian law, it would be preferable to use the unambiguous
formulation referring to the right to change religion.
The ICCPR also explicitly protects the right of parents and guardians to ‘ensure the
religious and moral education of their children in conformity with their own
convictions.’ A similar formulation is found in the European Convention on Human
Rights.18
Much of the 1981 Declaration overlaps with and repeats the provisions of art 18 of the
ICCPR.21 Sometimes it develops those rights, for example by including not only a
right to non-discrimination on the basis of religion (art 2), but also creating a positive
obligation on States to ‘take effective measures to prevent and eliminate
discrimination on the grounds of religion or belief in the recognition, exercise and
enjoyment of human rights and fundamental freedoms in all fields of civil, economic,
political, social and cultural life’ (art 4(1)). It further elaborates on the right of
parents/guardians to have their children educated according to their religious beliefs
and includes the right to organise family life according to religious beliefs (art 5(1)).
However, it adds the limitation that ‘[p]ractices of a religion or belief in which a child
is brought up must not be injurious to his physical or mental health or to his full
development’ (art 5(5)).
The most important development in the 1981 Declaration is that a more detailed list of
manifestations of religion is set out in art 6 in addition to the traditional formulation
11
of ‘worship, observance, practice, and teaching’ set out in the Universal Declaration
and ICCPR. The manifestations set out in art 6 are inclusive, rather than
comprehensive, and thus only represent a sub-section of the possible range of
manifestations that are protected in international law. The manifestations set out are
particularly focused on the rights of religious groups and organisations, including the
right to autonomy in the selection of clergy (art 6(g)), the right to purchase and
maintain places and objects of worship (art 6(c)), and the right to raise funds for
religious purposes (art 6(b)). There is less detail on individual manifestations of
freedom of religion or belief.
2.2.4 United Nations Human Rights Committee General Comment 22, 1993
The 1981 Declaration is, at least in part, an attempt to elaborate further the treaty
obligations set out in art 18 of the ICCPR. Another attempt at elaboration of these
obligations at an international level is General Comment 22: The Right to Freedom of
Thought, Conscience and Religion (Art 18) (‘General Comment 22’) of the United
Nations Human Rights Committee.22 The Committee is a body of human rights
experts from around the world with a number of responsibilities with respect to the
ICCPR, including receiving and determining individual complaints. From time to
time, they produce General Comments that set out their understanding of particular
issues of interpretation arising under the ICCPR. Their views are not binding but are
generally respected as an authoritative source in assisting in interpreting the ICCPR.
The key General Comment dealing with art 18 is General Comment 22 (set out in full
in the Appendix). General Comment 22 is the best distillation of the international law
obligation to protect freedom of religion or belief. It encapsulates the approach of
both the Human Rights Committee and other international bodies, such as the
European Court of Human Rights, in defining the right to freedom of religion or
belief as:
protect[ing] theistic, non-theistic and atheistic beliefs, as well as the right not to
profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly
construed. Article 18 is not limited in its application to traditional religions or to
religions and beliefs with institutional characteristics or practices analogous to those
of traditional religions.23
This approach to understanding the phrase ‘religion or belief’ is useful in that it
makes clear that non-theistic and atheistic beliefs are covered by art 18 (something
that is implicit but not express in the ICCPR) and also in recommending a broad
approach to defining religious freedom that does not give improper preference to
established or well-known religions. It is not, however, a definition of religion or
belief insofar as it does not set out either a test for recognising religion or belief (as
compared, for example, to a whim or preference or set of habits) or propose any limits
for the sorts of behaviours that might be considered religious.24
22
General Comment 22, above n Error: Reference source not found.
23
Ibid [2].
24
This can be compared to the approach of the Australian High Court in defining religion which is
discussed at 3.3.
12
by the wording ‘worship, observance, practice, and teaching’, saying that they
‘include not only ceremonial acts but also such customs as the observance of dietary
regulations, the wearing of distinctive clothing or headcoverings, participation in
rituals associated with certain stages of life, and the use of a particular language
customarily spoken by a group.’25
General Comment 22 also sets out guidelines on the circumstances in which religious
freedom may be limited. The internal aspect of freedom of thought, conscience and
religion (sometimes known as the forum internum) may never be interfered with by
the government, even in times of national emergency.26 The right to manifest a
religion or belief may be limited but only if the state can show that this was both
‘prescribed by law’ and ‘necessary to protect public safety, order, health, or morals or
the fundamental rights and freedoms of others’ (emphasis added). The Committee
rightly notes that these are the only grounds on which limitations are permitted and
that any restrictions ‘must be directly related and proportionate to the specific need
on which they are predicated’.27
25
General Comment 22, above n Error: Reference source not found, [4].
26
Ibid [1].
27
Ibid [8] (emphasis added).
13
Freedom of religion or belief can be exercised both alone and with
others; it has an individual and a collective aspect. It is for the
individual, rather than the state, to decide whether to exercise the right
individually and/or collectively.
14
obligations in the international sphere to which Australia is obliged to
adhere. In the case of some of the treaties which protect religious
freedom (for example, the ICCPR) individuals may bring complaints to
international bodies if Australia fails to fulfil its obligations.
Similarly, there are certain rules of customary international law that are binding on all
members of the international community. Some of these have their basis in non-
binding but politically and morally significant declarations of the General Assembly,
such as the Universal Declaration. While these declarations do not create binding
legal obligations in themselves, over time they may develop into customary
international law if there is sufficiently significant state practice and a belief in the
international community that they have become law.32 Customary international law
must also undergo a process of transformation before it becomes Australian law,
although there is some debate over its relationship with the common law.33
Despite the fact that an obligation at international law cannot be directly enforced in
Australian courts, it remains an obligation in the international sphere. International
obligations must be adhered to and domestic legal — or even constitutional —
arrangements do not provide an excuse for a failure to implement these obligations. 34
Some international treaties include provisions that allow for their enforcement in
international institutions. Most notably in the context of religious freedom, the ICCPR
allows for both other member states and individuals to bring complaints
(‘communications’) to the Human Rights Committee if they believe that their ICCPR-
protected rights (including freedom of religion) have been violated by Australia. 35
While communications brought by other States are rare, individual communications
29
Ian Brownlie, Principles of Public International Law (7th ed, 2008) 13.
30
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286–7 (Mason CJ
and Deane J).
31
Donald K Anton, Penelope Mathew and Wayne Morgan, International Law: Cases and
Materials (2005) 406.
32
Brownlie, above n Error: Reference source not found, 15.
33
Nulyarimma v Thompson (1999) 96 FCR 153. See also Andrew D Mitchell, ‘Genocide,
Human Rights Implementation and the Relationship between International and Domestic Law:
Nulyarimma v Thompson’ (2000) 24 Melbourne University Law Review 15.
34
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS
331, art 27 (entered into force 27 Jan 1980).
15
by Australians have become more common. The opinion of the Human Rights
Committee is only advisory and there is no direct enforcement of the decisions of the
Committee.36 However, Australia suffers reputational loss when it loses these cases
and its capacity to work to promote human rights in the broader international
community is lessened if it is perceived that Australia ignores the rulings of expert,
international human rights bodies.
International human rights protection can also influence the development of the
common law (although, as discussed above, there may be particular concerns about
the compatibility of religious freedom with the common law). There is also an
argument that there is a legitimate expectation that Commonwealth government
officials will comply with international obligations in making decisions, or at least
give notice that they intend not to and provide an opportunity for people affected by
the decisions to make representations about this issue.39 While this has been accepted
by the High Court, later cases have undermined the principle.40
The role of international law in influencing statutory interpretation has been given
additional force recently in the ACT and Victoria with their statutory protection of
human rights, including religious freedom. In the ACT, courts may consider
‘international law, and the judgments of foreign and international courts and tribunals,
relevant to a human right’ in interpreting human rights. 41 In Victoria, in interpreting a
statutory provision, courts may consider ‘international law and the judgments of
domestic, foreign and international courts and tribunals relevant to a human right’.42
35
Optional Protocol to the International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 302, art 1 (entered into force 23 March 1976).
36
Ibid, art 5(4).
37
See, eg, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason
CJ and Deane J).
38
Al-Kateb v Godwin (2004) 219 CLR 562, 581 [33] (McHugh J), 643 [241] (Hayne J), 661–2
[297]–[298] (Callinan J).
39
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 288–292 (Mason CJ
and Deane J).
40
See, eg, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam
(2003) 214 CLR 1.
41
Human Rights Act 2004 (ACT) s 31(1).
42
Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(2).
16
In both cases (in slightly different ways) courts are expressly invited to take
international human rights law into account when interpreting statutes. 43 The impact
of these human rights Acts is discussed in greater detail in chapter 5.
Section 51(xxix) of the Constitution gives the Commonwealth Parliament the power
to make laws with respect to ‘external affairs’. While this power has several
dimensions, the most relevant for current purposes is that it allows the
Commonwealth to pass legislation that implements a treaty obligation. 44 Thus any of
the treaties relevant to religious freedom or the regulation of religion discussed above
could be implemented into Australian law by the Commonwealth Parliament. It is not
yet clear whether the declarations and other instruments, such as General Comment
22 of the Human Rights Committee, could form the basis for legislation.
While international treaties that protect religious freedom form a basis for
Commonwealth legislation, they also inform the limits of the legislation. The fact that
there is a treaty in existence that deals with religious freedom does not give the
Commonwealth comprehensive power to deal with religious freedom as it wishes. 45
The power is only to implement the relevant treaty provisions. The Commonwealth
does not have to implement the treaty comprehensively; partial implementation is
permitted, so long as it does not undermine the purpose of the treaty. 46 It would
therefore be within Commonwealth power to implement art 18 of the ICCPR, for
example, without comprehensive legislation protecting all the rights protected in the
ICCPR.
The legislation does not need to repeat the precise words of the treaty. The test that
must be met is whether the legislation is ‘appropriate and adapted’ to the purpose of
implementing the obligations in the treaty.47 This allows the Commonwealth some
latitude in both the wording of the right and developing appropriate mechanisms for
its protection. However, the power is not unlimited and legislation that cleaves as
closely as possible to the treaty provisions is less likely to be subject to successful
constitutional challenge than legislation that takes a more expansive approach. The
Parliament, however, is given more scope to determine how best to enforce the
43
Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter
and ACT Human Rights Act (2008) ch 3.
44
Victoria v Commonwealth (1996) 187 CLR 416, 482–5 (Brennan CJ, Toohey, Gaudron,
McHugh and Gummow JJ) (‘the Industrial Relations Act Case’).
45
Ibid 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
46
Ibid 488 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
47
Ibid 487 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
17
protection of religious freedom (for example, through setting up a rights body or
giving increased power to the Australian Human Rights Commission, imposing civil
or criminal sanctions, forbidding certain actions by public servants, etc).
In order to form the basis of legislation, the treaty obligations must also be
sufficiently precise and not merely aspirational.48 While the key provisions of
international treaties that protect religious freedom (eg art 18 of the ICCPR) are
written in relatively broad language, it is likely that the courts would find the standard
formulation for protection of religious freedom in international law to be sufficiently
precise for constitutional purposes. This is particularly so given that similar language
has been picked up in the constitutional or statutory protections of religious freedom
in many countries, and there is now a considerable body of both domestic and
international case-law that gives a more detailed account of how this protection is to
be interpreted.
48
Ibid 486 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
18
3 CONSTITUTIONAL PROTECTION OF RELIGIOUS FREEDOM
3.1 INTRODUCTION
Unlike most modern constitutions, the Australian Constitution does not contain a bill
of rights. It does, however, include several provisions that protect particular rights to
some degree. One of these is s 116:
The Commonwealth shall not make any law for establishing any religion, or for
imposing any religious observance, or for prohibiting the free exercise of any
religion, and no religious test shall be required as a qualification for any office or
public trust under the Commonwealth.
Section 116 was based on the religion clauses of the United States Constitution,49
although it modified their wording somewhat with respect to the non-establishment
and religious freedom clauses, and it added prohibitions on imposing religious
observances or religious tests for public offices.
49
The most comprehensive account of why and how s 116 was included is in Richard Ely, Unto
God and Caesar: Religious Issues in the Emerging Commonwealth 1891–1906 (1976). See also
Stephen McLeish, ‘Making Sense of Religion and the Constitution: A Fresh Start for Section 116’
(1992) 18 Monash University Law Review 207, 213–21.
50
See, eg, Grace Bible Church Case (1984) 36 SASR 376, 379 (Zelling J).
51
Compare Kruger v Commonwealth (1996) 190 CLR 1, 60–1 (Dawson J), 141–2 (McHugh J)
with 79, 85–6 (Toohey J), 122–3 (Gaudron J) (‘Kruger’).
52
(1943) 67 CLR 116, 123.
53
Ibid.
19
The most comprehensive discussion of the definition of religion by the Australian
High Court was in the Church of the New Faith v Commissioner of Pay-roll Tax
(Vict) (‘the Scientology Case’)54 in the context of a legislative provision giving a
taxation exemption to ‘religious institutions’.55 The Church of the New Faith, more
commonly known as Scientologists, challenged the decision of the Commissioner of
Pay-roll Tax who had held that Scientology was not a religion for the purposes of this
exemption. The justices in the case, however, made clear that they intended their
discussion of the definition of religion under the legislation to have a broader
application, including to the constitutional definition of religion.56
Murphy J took an expansive approach to defining religion. His Honour rejected the
notion that there is single criterion to determine a religion or a closed set of categories
of religions. He said that it is better ‘to state what is sufficient, even if not necessary,
to bring a body which claims to be religious within the category.’ 61 This very vague
language makes it difficult to determine what is necessary in order to determine
whether a group is religious, especially given that Murphy J then went on to discuss a
wide range of circumstances in which a body may be determined to be religious. One
common theme to his Honour’s examples is that the bodies must claim to be religious.
In addition, it is sufficient if their ‘beliefs or practices are a revival of, or resemble,
earlier cults’, if they ‘believe in a supernatural Being or Beings’ (including worship of
54
(1983) 154 CLR 120.
55
Pay-roll Tax Act 1971 (Vic) s 10. The factual background to the case is outlined in the
Scientology Case (1983) 154 CLR 120, 128–9 (Mason ACJ and Brennan J).
56
Scientology Case (1983) 154 CLR 120, 130 (Mason ACJ and Brennan J).
57
Ibid 136.
58
Ibid 141. See also Wilson and Deane JJ at 170, who held that it is irrelevant to the
determination of religious status whether members are ‘gullible or misguided or, indeed, that they be
or have been deliberately mislead or exploited.’
59
Ibid 173.
60
Ibid 174.
61
Ibid 151.
20
a God, spirit, or the sun or stars), if they claim to be religious and offer ‘a way to find
meaning and purpose in life’, or if they are indigenous religions. 62 The vagueness of
Murphy J’s definition is compounded by the fact that his Honour denied that a
religion must involve belief in a god,63 that it must claim exclusive access to religious
truth,64 that it must have consistently claimed religious status over time, 65 that it must
be involved with propitiation and propagation66 or that it must be accepted by the
public.67 This definition is in some ways the most consistent with the very broad
approach adopted in international law but not particularly useful in defining the
boundaries of the definition of religion.
One question that arises is whether executive action falls within the prohibition of
making a law. The answer appears to be that it does but only to some extent. When a
member of the executive acts under a statutory power in such a way as to establish a
religion or to prohibit free exercise then that executive action may be invalid. It is not
invalid as directly breaching s 116 (because s 116 only deals with laws). Instead, it is
invalid because the enabling statute cannot authorise action that is in breach of s 116
in most (although not necessarily all) circumstances.68
However, executive power is not only statutory. The executive has a range of powers
granted directly by the Constitution and prerogative or common law powers. These
powers can be quite extensive (for example, in Ruddock v Vadarlis (‘the Tampa
Case’)69 it was held that they extended to forcibly preventing the entry of those aboard
the MV Tampa into Australia) and they include the powers of a legal person with
respect to such things as entering into a contract, property ownership and control, and
employment. These are areas where there is real potential for interference with
religious freedom and they are not caught by the constitutional protection in s 116.
62
Ibid 151.
63
Ibid 154–6.
64
Ibid 160.
65
Ibid 156–7.
66
Ibid 158–9.
67
Ibid 159.
68
A-G (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559, 580–1 (Barwick CJ) (‘the
DOGS Case’). See also Kruger (1997) 190 CLR 1, 86 (Toohey J), 131 (Gaudron J); Minister for
Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 17 FCR 373, 379
(Jackson J).
69
(2001) 110 FCR 491.
21
3.5 FREE EXERCISE OF RELIGION
3.5.1 Types of Actions Covered by Free Exercise
The free exercise clause of s 116 has been given a limited meaning. The tone for later
cases was set in an early High Court case where Griffith CJ and Barton J dealt
dismissively with an appellant who refused to attend the training required under the
Defence Act 1903 (Cth) on the basis that his Christian beliefs required him to be a
conscientious objector. The Act required all resident male British subjects to train for
defence work, although conscientious objectors were, as far as practically possible, to
be accommodated in working in non-combat roles.70 The justices dealt with the case
almost contemptuously, with Griffith CJ describing the appellant’s position as
‘absurd’71 and Barton J declaring that the case was ‘as thin as anything of the kind that
has come before us.’72 Griffith CJ dismissed the appeal stating:
To require a man to do a thing which has nothing at all to do with religion is not
prohibiting him from a free exercise of religion. It may be that a law requiring a man
to do an act which his religion forbids would be objectionable on moral grounds, but
it does not come within the prohibition of sec. 116, and the justification for a refusal
to obey a law of that kind must be found elsewhere. The constitutional objection
entirely fails.73
Similar reasoning was used to dismiss a claim by a man who refused, on the basis of
religious conviction, to pay the portion of his taxation that would be used to provide
for abortions74 and to dismiss a claim that a legal obligation to reveal the contents of a
religious confession was a breach of s 116.75
The courts have recognised, however, that the protection in s 116 extends beyond
beliefs to encompass some forms of conduct. Indeed, given that the phrase ‘free
exercise’ is used in s 116, such a conclusion would have been difficult to avoid.
Latham CJ in the Jehovah’s Witnesses Case denied that the provisions of s 116
applied only to religious beliefs, especially given that the wording of the section
explicitly refers to the free exercise of religion. Thus, his Honour concluded the
section goes beyond the protection of beliefs and ‘protects also acts done in pursuance
of religious belief as part of religion.’76 This connection was also noted by
Mason ACJ and Brennan J in the Scientology Case. In coming to their Honours’
definition of religion, they recognised that religion was more than a set of theological
principles or a belief in the supernatural: ‘Thus religion encompasses conduct, no less
70
Defence Act 1903 (Cth) s 143(3).
71
Krygger v Williams (1912) 15 CLR 366, 371.
72
Ibid 373.
73
Ibid 369. See also at 372 (Barton J): ‘the Defence Act is not a law prohibiting the free exercise
of the appellant’s religion’.
74
Daniels v Deputy Commissioner of Taxation [2007] SASC 431 (Unreported, Debelle, Sulan
and Vanstone JJ, 7 December 2007) [12] (Debelle J).
75
SDW v Church of Jesus Christ of Latter-Day Saints (2008) 222 FLR 84, 94–5 [69]–[76]
(Simpson J). This claim was described by Simpson J (at 95 [76]) as ‘devoid of merit and entirely
misconceived’ with little reasoning, despite the potentially serious implications of the decision for
certain religious groups.
76
Jehovah’s Witnesses Case (1943) 67 CLR 116, 124.
22
than belief.’77 Their Honours described religious action in broad terms, noting that in
theistic religions it will normally include some ritual observances but that, more
broadly, religious actions are ‘[w]hat man feels constrained to do or to abstain from
doing because of his faith in the supernatural’. 78 In order to prove that the cannons of
conduct that a person has set for him or herself fall within the immunity granted to
religion, the believer must show a ‘real connexion’ between the conduct and the belief
in the supernatural.79 Mason ACJ and Brennan J also observed that even traditional
religious behaviour, such as worship, teaching or propagation, will need to pass this
connection test (although one would assume that it would not be difficult for it to do
so).80
Earlier case-law of the High Court was less restrictive. It recognised that a law that,
on its face, had nothing to do with religion (and might have not been intended to
impact on religion) may none the less have had serious implications for free exercise.
In the Jehovah’s Witnesses Case, Latham CJ recognised that the Commonwealth has
no power with respect to religion and hence s 116 applied to all laws which ‘in some
manner relate to religion’ and not only to laws dealing expressly with religion. 81
Gaudron J in the more recent Kruger v Commonwealth (‘Kruger’)82 also recognised
the problems in requiring a law to be directed at religion on its face or have the sole
purpose of prohibiting free exercise. Too rigid a rule such as this, her Honour rightly
noted, could allow governments to restrict religious freedom indirectly and was not
consistent with religious freedom.83
The test set out by the majority in Kruger, however, and which is broadly consistent
with previous case-law, is that only a law which has a purpose of ‘achieving an object
which s 116 forbids’ falls foul of the constitutional provision.84 It is not enough for a
plaintiff to show that the effect of the law is to restrict or even seriously undermine
their capacity to freely exercise their religion of choice. As Toohey J put it, in the
context of whether the removal of Aboriginal children breached s 116: ‘It may well be
that an effect of the Ordinance was to impair, even prohibit the spiritual beliefs and
practices of the Aboriginal people in the Northern Territory … But I am unable to
discern in the language of the Ordinance such a purpose.’ 85 A similar analysis was
given by Gummow J, who further noted that the objective or purpose of the
77
Scientology Case (1983) 154 CLR 120, 135.
78
Ibid.
79
Ibid.
80
Ibid.
81
(1943) 67 CLR 116, 122–3.
82
(1997) 190 CLR 1.
83
Ibid 131.
84
Ibid 40 (Brennan CJ). See also at 60–1 (Dawson J), 86 (Toohey J), 160–161 (Gummow J).
85
Ibid 86.
23
legislation did not refer to the ‘underlying motive but to the end or object the
legislation serves.’86
It is thus fairly clear that a law that has the effect of prohibiting or restricting free
exercise (and perhaps was even motivated in part by this end) but that does not reveal
such a purpose on its face is unlikely to be struck down for inconsistency with s 116.
The restraints placed on religious freedom have, at times, proved very onerous
without a breach of s 116 being found. The most important case in this regard is the
Jehovah’s Witnesses Case. The case arose because the Governor-General declared the
Jehovah’s Witnesses (along with several other groups) ‘prejudicial to the defence of
the Commonwealth or the efficient prosecution of the [Second World] war.’ This
declaration, which made the Jehovah’s Witnesses an ‘unlawful’ organisation, was
made under the National Security (Subversive Associations) Regulations 1940 (Cth).
On the same day that it was made, an officer of the Commonwealth took possession
of the Kingdom Hall in Adelaide (in which the Jehovah’s Witnesses met for religious
purposes) and refused to allow the Adelaide Company of Jehovah’s Witnesses to use
it. While parts of the regulations were found to be beyond power for other reasons, the
Court unanimously found that they did not breach section 116. 90 The case
demonstrates the difficulty of ensuring religious freedom during times of national
emergency and the extent to which provisions protecting rights can be read down by
courts, especially when marginal religious groups are involved.91
86
Ibid 160 (citation omitted).
87
(1943) 67 CLR 116, 131.
88
(1983) 154 CLR 120, 136. See also Kruger (1996) 190 CLR 1, 160 (Gummow J).
89
Scientology Case (1983) 154 CLR 120, 136.
90
Jehovah’s Witnesses Case (1943) 67 CLR 116, 132–4, 147 (Latham CJ), 149 (Rich J), 155
(Starke J), 156–7 (McTierenan J), 160–1 (Williams J).
91
The Company of Jehovah’s Witnesses in Adelaide at the time had only around 200–250
members: ibid 117. The judgment of Williams J demonstrates the level of prejudice that could be
found against the group, even within the ranks of the judiciary: at 158–60.
24
The case clearly established that the right to free exercise conferred by s 116 can be
limited, as would be expected. The circumstances of the case being heard during war
time and involving an assessment by the executive that a religious group put the
defence of the Commonwealth in jeopardy meant that little analysis was given by the
justices as to how the limits of religious freedom would apply in cases where the
national interest was less weighty.
Only one of the five justices, Murphy J, supported that position. His Honour
determined, based in large part on the American case-law, that financial aid to
religious institutions was a form of establishment prohibited by s 116 of the
Australian Constitution.95
The six majority justices (who each wrote separate opinions) took a narrower
approach to the issue of establishment. Rather than perceiving the clause as creating a
right that required a broad interpretation, they held that it was a limitation on
governmental power96 and was therefore not to be construed liberally. Barwick CJ
held that the word ‘for’ required that a law must have the objective of establishment
‘as its express and, as I think, single purpose.’ Each of the justices came to slightly
different definitions of establishment. Barwick CJ held that it involves ‘the
identification of the religion with the civil authority so as to involve the citizen in a
duty to maintain it and the obligation of, in this case the Commonwealth, to patronize,
protect and promote the established religion. In other words, establishing a religion
involves its adoption as an institution of the Commonwealth’. 97 Expressing broadly
the same opinion in briefer terms, Gibbs J held that the Commonwealth could only
establish a religion if it was to ‘constitute a particular religion or religious body as a
92
See generally Joshua Puls, ‘The Wall of Separation: Section 116, the First Amendment and
Constitutional Religious Guarantees’ (1998) 26 Federal Law Review 139, 143–5. See also a very
prescient article, P H Lane, ‘Commonwealth Reimbursements for Fees at Non State Schools’ (1964)
38 Australian Law Journal 130.
93
(1981) 146 CLR 559.
94
Ibid 561–2.
95
Ibid 624–33.
96
Ibid 603 (Gibbs J), 605 (Stephen J), 652–3 (Wilson J).
97
Ibid 582.
25
state religion or a state church.’98 Similar definitions were given by Mason J99 and
Wilson J.100 Stephen J also discussed establishment in terms of creating a state
church,101 but cautioned that the relationship of establishment is created by the ‘sum
total’ of a range of laws and that no ‘single element of those relations, viewed in
isolation, itself creates establishment.’102 Aickin J agreed with Gibbs and Mason JJ.103
While the details of each definition differ slightly, the majority justices were in no
doubt that the indirect funding of religious schools fell far short of what was required
for establishment.104 They acknowledged that funding may sometimes be part of a
scheme to create a state church105 but were convinced that, in the case before them, no
such establishment had occurred. Given the very high threshold set by the Court, it is
highly unlikely that the establishment clause will play much further role in regulating
church-state relations.106
26
objections are conscientious or not. Whatever his reason, or even if he has no reason
for declining to take an oath, he cannot constitutionally be required to do so. The
provision in s 4 of the Royal Commissions Act which relieves a person from taking an
oath if he conscientiously objects and makes an affirmation that he conscientiously
objects therefore does not avoid the constitutional prohibition. It extends only to
conscientious objection. Further, it requires the person (as a condition of being
relieved from taking an oath) to affirm that he conscientiously objects. This interferes
with the free exercise of religion. Consistently with s 116 no one can be required by
any law of the Commonwealth to state or explain his reasons for declining to take an
oath; his religious beliefs or lack of belief cannot be examined and he cannot be
called upon to state, explain or justify them, as conscientious or otherwise. 108
The point is a significant one and the argument sound. It is perhaps a reflection of the
marginal role that s 116 has played in Australian constitutional law that it was not
central to the case.
Thirdly, the protection could be extended to ‘religion or belief ’. This would be in line
with Australia’s international obligations, and would perhaps help to expand the
constitutional definition of religion beyond the current focus on belief in the
supernatural/deity and make clear that the protection also extends to atheism,
agnosticism, humanism and so forth. The current definitions of religion strain with
these concepts, although the High Court has recognised that freedom of religion
includes a right to reject a religion. This, however, may not be as appropriate as
recognising such beliefs in their own right, rather than simply as the negative of
religion.
27
including potentially a positive obligation on the government to take steps to protect
the religious freedom of individuals or organisations. Such a change may also
encourage the High Court to take a more expansive approach to interpreting religious
freedom, as some of the narrowness of interpretation has been justified on the basis
that s 116 is a limitation on legislative power and should therefore be read narrowly.
One complicating factor with the 1988 referendum is that it proposed to replace the
phrase ‘shall not make any law for establishing any religion’ with ‘shall not establish
any religion’.114 This raised serious concerns, particularly in the Catholic community,
that the new formulation might increase the scope of the establishment clause in such
a way as to prohibit government funding to religious schools. For several of the
justices in the DOGS Case, the distinction between the use of ‘respecting’ in the
formulation of the non-establishment clause of the United States Constitution was a
critical factor in concluding that the Australian courts should not follow United States
case-law in defining establishment. This seemingly innocuous proposed change in
wording in the 1988 referendum led to concern by those who supported religious
schools that their funding might be threatened. How significant this concern was to
the eventual result of the referendum is not clear, but it certainly serves as a warning
that any future proposed constitutional changes will need to deal more explicitly with
this issue.
109
Constitutional Alteration (Rights and Freedoms) Bill 1988 (Cth) cl 4.
110
See Commonwealth, Constitutional Referenda in Australia, Parl Paper No 2 (1999), Table 1.
111
Enid Campbell, ‘Southey Memorial Lecture 1988: Changing the Constitution — Past and
Future’ (1989) 17 Melbourne University Law Review 1.
112
See Constitutional Alteration (Post-war Reconstruction and Democratic Rights) Bill 1944
(Cth).
113
Commonwealth, Constitutional Referenda in Australia, Parl Paper No 2 (1999) discusses the
reasons given for the failure of constitutional proposals and the lack of empirical research in this
area.
114
Constitution Alteration (Rights and Freedoms Bill) 1988 (Cth) cl 4.
28
3.9 CONCLUSION
For the time being, the protection of religious freedom under the Australian
Constitution is far from comprehensive. Both the terms of the Constitution itself and
the way in which it has been interpreted allow for significant scope for government
interference with religious freedom. Constitutional change, however, even simply to
expand the scope of the current protection, may prove difficult at present. It may be
easier and better to supplement the current protection of religious freedom in the
Constitution with statutory protection. This is discussed further in chapter 5.
However, it should be noted that only constitutional protection of religious freedom
would be effective to invalidate Commonwealth laws that infringe religious freedom
or to apply comprehensively to State government action as well as Commonwealth
government action. Any Commonwealth statutory bill of rights or protection of
religious freedom will not be able to achieve these ends.115
115
While, by virtue of s 109 of the Constitution, a Commonwealth law protecting religious
freedom could apply to most actions of State governments and could invalidate State laws ‘to the
extent of [their] inconsistency’ with the Commonwealth law, certain areas of core State functions
cannot be overridden by Commonwealth legislation. See Melbourne Corporation v Commonwealth
(1947) 74 CLR 31; Austin v Commonwealth (2003) 215 CLR 185.
29
4 DISCRIMINATION LAWS AND RELIGION
4.1 INTRODUCTION
Discrimination laws intersect with religious freedom in two key ways. 116 First, in
some Australian jurisdictions, they protect individuals against discrimination on the
basis of their religion. As discussed above, the principle of non-discrimination on the
basis of religion is one of the clearest principles of international human rights law in
this area.
The second way in which discrimination laws intersect with religious freedom is
when religious groups or individuals claim that they should be exempt from certain
aspects of discrimination law. Religious groups may wish to engage in discrimination
(on the basis of religion or other bases such as sex, marital status or sexuality). Most
religious groups believe that it is essential that they maintain autonomy when it comes
to issues such as selection of clergy or other key religious appointments. This
autonomy is an important element of religious freedom, impacts on a relatively small
number of people and would be hard to justify removing. However, religious groups
may wish to be permitted to discriminate in other areas in which they are active, for
example in relation to admissions to religious schools, employment in religious
organisations or the types of groups to whom they rent property. In such cases, the
religious freedom of individuals or groups can come into conflict with the right of
other individuals not to be discriminated against. In most Australian jurisdictions this
tension is dealt with by a partial exemption to some discrimination laws for religious
bodies. The precise nature and scope of these exemptions differs between different
jurisdictions.
116
These are the two areas that will be focused on in this paper. However, other provisions of
discrimination law can be relevant to religious freedom. For a useful discussion of the exemptions to
discrimination laws, including how they can impact on religious groups, see Scrutiny of Acts and
Regulations Committee, Parliament of Victoria, Exceptions and Exemptions to the Equal
Opportunity Act 1995: Options Paper (2009).
117
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 3, 8(6), 11(1)(f)(i).
118
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 3, 8(6), 31(b)(1).
30
employment on the basis of religion,119 although this does not prevent an employer
discriminating against a job applicant before the employment relationship comes into
being. The Workplace Authority Director also has responsibility to check workplace
agreements lodged with a view to, amongst other things, eliminating religious
discrimination.120 There are more expansive protections in the Fair Work Act 2009
(Cth),121 which will replace the Workplace Relations Act. The new provisions also
extend the prohibition of termination of employment on the basis of religion to
‘adverse action’ against an employee or prospective employee on the basis of
religion.122 Adverse action is defined to include such things as dismissing an
employee or refusing to employ a prospective employee.123
119
Workplace Relations Act 1996 (Cth) s 659(2)(f).
120
Workplace Relations Act 1996 (Cth) s 150B(2)(d).
121
Fair Work Act 2009 (Cth) ss 153(1), 194(a), 195(1), 351(1), 578(c), 772(1)(f).
122
Fair Work Act 2009 (Cth) s 351(1).
123
Fair Work Act 2009 (Cth) s 342(1).
124
New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977
(NSW), Report No 92 (1999).
125
South Australian Attorney-General’s Department, Discussion Paper: Proposal for a New Law
Against Religious Discrimination and Vilification (2002).
126
Discrimination Act 1991 (ACT) s 11; Anti-Discrimination Act (NT) s 19(m); Anti-
Discrimination Act 1991 (Qld) s 7(i); Anti-Discrimination Act 1998 (Tas) s 16(o), (p); Equal
Opportunity Act 1995 (Vic) s 6(j); Equal Opportunity Act 1984 (WA) s 53(1).
127
Discrimination Act 1991 (ACT) ss 10–17; Anti-Discrimination Act (NT) ss 31–37A; Anti-
Discrimination Act 1991 (Qld) ss 15–36; Anti-Discrimination Act 1998 (Tas) s 22(1)(a); Equal
Opportunity Act 1995 (Vic) ss 13–15, 30–1; Equal Opportunity Act 1984 (WA) ss 11–17.
128
Discrimination Act 1991 (ACT) s 20; Anti-Discrimination Act (NT) s 41; Anti-Discrimination
Act 1991 (Qld) ss 45–51; Anti-Discrimination Act 1998 (Tas) s 22(1)(c); Equal Opportunity Act
1995 (Vic) s 42; Equal Opportunity Act 1984 (WA) s 20.
31
accommodation,129 education,130 membership of clubs and participation in sporting
activity,131 and provision of government services.132
32
An unsuccessful claim by an employee who was asked to remove a
notice to hold a prayer service during work hours in a secular
workplace.137
In the ACT, s 11 of the Discrimination Act 1991 (ACT) is a somewhat more detailed
provision. For the purpose of prohibiting discrimination against an employee on the
grounds of religious conviction by refusing permission to the employee to carry out a
religious practice during working hours, it defines ‘religious practice’ as
a practice—
(a) of a kind recognised as necessary or desirable by people of the same religious
conviction as that of the employee; and
(b) the performance of which during working hours is reasonable having regard
to the circumstances of the employment; and
(c) that does not subject the employer to unreasonable detriment. 138
With the partial exception of the ACT provisions, these definitions do not, in
themselves, define religious activity or belief with any real precision. What is clear
from them is that not holding a religious belief or engaging in a religious activity is
protected equally to having or acting on a religious belief. Thus, atheists and agnostics
are included within the definitions and non-discrimination provisions. People are
protected both in having their own beliefs, on one hand, and not being pressured to
change beliefs or to adopt religious beliefs when they have none, on the other.139
The Supreme Court of Queensland has held that an amendment to the Anti-
Discrimination Act 1991 (Qld) so as to include express mention of the right not to
engage in a religious activity was simply an explanation of the proper meaning of
‘religion’ in the previous provision and not a change to the legal position. 140 The
implication of this decision is that any reference to non-discrimination on the basis of
137
D’Urso v Peninsula Support Service Inc [2005] VCAT 871 (Unreported, Member Davis V-P,
11 May 2005).
138
See also Equal Opportunity Act 1984 (WA) s 54(3).
139
See, eg, Ciciulla v Curwen-Walker (1998) EOC ¶92-934. This case dealt with discrimination
on the basis of private life, which is defined to include religion. The employers in the case subjected
their employee to multiple invitations to their church, required her to attend a religious service,
criticised things such as her coffee drinking as an addiction, and allowed their pastor to regularly
give her religious pamphlets and invitations to the service during her working hours.
140
Dixon v Anti-Discrimination Commissioner [2005] 1 Qd R 33.
33
religion would also include non-discrimination on the basis of not having a religion or
refusing to be actively involved in a religion.
At the Commonwealth level, the Racial Discrimination Act 1975 (Cth), for example,
makes it ‘unlawful for a person to do any act involving a distinction, exclusion,
restriction or preference based on race, colour, descent or national or ethnic origin
which has the purpose or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing, of any human right or fundamental freedom in the
political, economic, social, cultural or any other field of public life.’ 141 In some
circumstances, the prohibition of racial or ethnic discrimination provides a degree of
protection to some religious groups.
However, certain groups, where religion plays a part in the creation of the group, such
as Jews and Sikhs, have been accepted as being racial or ethnic groups for the purpose
of the legislation.145 Such provisions may also give protection to some Aboriginal
groups. In a case dealing with racial vilification, for example, the Human Rights and
Equal Opportunity Commission held: ‘The Nyungah elders are an ethnic group in that
they have a shared history, separate cultural tradition, common geographical origin,
141
Racial Discrimination Act 1975 (Cth) s 9(1).
142
Anti-Discrimination Act 1977 (NSW) s 4(1) defines ‘race’ to include, among other things,
‘ethno-religious or national origin’.
143
[1999] NSWADT 120 (Unreported, Members Bartley, Edwards and Luger, 12 November
2009); (2000) EOC ¶93-039 (digest).
144
Note, however, that this case involved a claim against a government school, not a religious school.
The discrimination alleged was the holding by the school of Christmas and Easter activities and the
reciting of a school prayer — essentially the imposition/exposure of Christian religious practices on
non-Christian students.
145
See, eg, Jones v Scully (2002) 120 FCR 243, 271–2 [110]–[113] (Hely J) (Jews in Australia
are a group of people with an ‘ethnic origin’ for the purposes of the Racial Discrimination Act 1975
(Cth)); Haider v Combined District Radio Cabs Pty Ltd t/as Central Coast Taxis [2008] NSWADT
123 (Unreported, Members Layton, Nemeth de Bikal and Schneeweis, 24 April 2008) [50] (‘Middle
Eastern Muslim’ is a ‘race’ within the definition in s 4 of the Anti-Discrimination Act 1977 (NSW)
as ethno-religious origin).
34
descent from common ancestors, a common language and a religion different to the
general community surrounding them.’146 Other groups, including Christians and
Buddhists, whose membership is made up of a variety of ethnic groups, are not
covered by race or ethnicity. There is some question over whether Islam is covered by
these provisions. While the issue has been contested, it is now reasonably clear that
Islam is neither a race nor an ethno-racial category for the purposes of discrimination
or vilification laws.147 These distinctions between race, ethnicity and religion can be
very difficult to maintain, and lead to people in seemingly similar situations being
given different levels of legal protection.148
At the Commonwealth level, for example, religious belief is not a ground for
exemption from the Racial Discrimination Act 1975 (Cth). Under the Sex
Discrimination Act 1984 (Cth), however, there are a number of religiously based
exemptions. For example, in relation to accommodation, discrimination against a
person on the basis of that ‘person’s sex, marital status, pregnancy or potential
pregnancy’ is unlawful, but an exemption is given for ‘accommodation provided by a
religious body’.149 There are also several more general exemptions for religious
organisations from many of the prohibitions on discrimination. Thus, the prohibition
of discrimination does not apply to the training, ordination or appointment of priests,
religious ministers and members of religious orders, or those involved in religious
observances.150 This is relatively confined. More general, however, is the exemption
in s 37(d) for
any other act or practice of a body established for religious purposes, being an act or
practice that conforms to the doctrines, tenets or beliefs of that religion or is
necessary to avoid injury to the religious susceptibilities of adherents of that
religion.151
There are also particular exemptions for discrimination by a person in the context of
‘an educational institution that is conducted in accordance with the doctrines, tenets,
146
Wanjurri v Southern Cross Broadcasting (Aus) Ltd (2001) EOC ¶93-147, 75 482
(Commissioner Innes) (emphasis added).
147
Khan v Commissioner, Department of Corrective Services [2000] NSWADT 72 (Unreported,
Members King P, Farmer and Nemeth de Bikal, 8 June 2000) [10]; Ekermawi v Harbour Radio Pty
Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT; Trad v Jones & anor (No. 3)
[2009] NSWADT 318; Kunhi v University of New England [2008] NSWADT 333.
148
Katherine Gelber, ‘Hate Speech in Australia: Emerging Questions’ (2005) 28 University of New
South Wales Law Journal 861, 862–3.
149
Sex Discrimination Act 1984 (Cth) s 23.
150
Sex Discrimination Act 1984 (Cth) s 37(a)–(c).
151
Sex Discrimination Act 1984 (Cth) s 37(d).
35
beliefs or teachings of a particular religion or creed, if the first-mentioned person so
discriminates in good faith in order to avoid injury to the religious susceptibilities of
adherents of that religion or creed.’152 Voluntary organisations are also given an
exemption, both with respect to membership and provision of services.153
152
Sex Discrimination Act 1984 (Cth) s 38.
153
Sex Discrimination Act 1984 (Cth) s 39.
154
(1986) EOC ¶92-161.
155
Hazan v Victorian Jewish Board of Deputies (1990) EOC ¶92-298.
156
Walsh v St Vincent de Paul Society Queensland [No 2] [2008] QADT 32 (Unreported,
Member Wensley, 12 December 2008); (2009) EOC ¶93-522 (digest).
157
Ibid [76].
158
Ibid [77].
159
See, eg, the discussion of the complicated series of relationships between entities in OV v QZ
[No 2] [2008] NSWADT 115 (Unreported, Members Britton D-P, Nemeth de Bikal and
Schneeweiss, 1 April 2008) [35]–[60], [65]; (2008) EOC ¶93-490 (digest).
36
Some examples of cases in which attempts to use the exemption for religious bodies
have failed include:
A case in which a high profile advocate for gay and lesbian rights was
refused classification as a teacher in Catholic schools on the basis that
she could not uphold the ‘doctrines, tenets, beliefs or teachings’ of the
Church. The Church’s attempt to rely on the exemption was rejected, it
being held that this discrimination was contrary to the teachings of the
Church and not in compliance with them, and that any offence to
parents was not an injury ‘to their religious susceptibilities but an
injury to their prejudices’.161
This final case, relating to a welfare agency run by the Uniting Church, included a
discussion about the meaning of the phrases ‘doctrines … of [a] religion’ and
‘necessary to avoid injury to the religious susceptibilities’ of a religious adherent in
s 56(d) of the Anti-Discrimination Act 1977 (NSW). The New South Wales
Administrative Decisions Tribunal first held that the religion in question was
Christianity and that the Uniting Church was merely a denomination of Christianity. 163
(The logic of the decision would likely extend to any Christian denomination.) The
exemption therefore only extended to something that was a doctrine accepted by all
Christians. As there was debate about homosexuality in the Christian religion, there
were no grounds for saying that there was specific Christian doctrine in this area. 164
The argument that the consequence of such reasoning would be to make it almost
impossible to claim the benefit of the exemption, because almost all matters of
doctrine were disputed to some degree, was dismissed by the Tribunal on the basis
that legislation sometimes has unexpected consequences.165
Secondly, with respect to the religious sensibilities limb of the exemption, the
Tribunal noted: ‘It is common ground that “injury” requires more than mere offence
(see Hozack v The Church of Jesus Christ of Latter Day Saints (1997) 79 FCR 441)
and “necessity’ connotes a higher test than merely convenience or reasonableness (see
Hazan v Victorian Jewish Board of Deputies [1990] EOC 92-98).’166 It went on to
160
Thompson v Catholic College, Wodonga (1988) EOC ¶92-217.
161
Griffin v The Catholic Education Office (1998) EOC ¶92-928. This is quite a startling
decision, particularly the notion that a secular tribunal is competent to determine the real teachings
of a Church.
162
OV v QZ [No 2] [2008] NSWADT 115 (Unreported, Members Britton D-P, Nemeth de Bikal
and Schneeweiss, 1 April 2008); (2008) EOC ¶93-490 (digest).
163
Ibid [88]–[119].
164
Ibid [126]–[128].
165
Ibid [117].
166
Ibid [135].
37
hold that it would not be possible to claim the benefit of the religious sensibilities
limb of the exemption unless a consistent response was likely from members of the
religion.167 Again, it is difficult to see this being made out in practice very often.
This case was subsequently appealed to the Appeal Panel of the Tribunal and the
decision has not been handed down yet. It is therefore not appropriate to say any more
than to note that if such an interpretation of the exemption provision were to become
widespread, it may well render it a dead letter.168
167
Ibid [140]–[144].
168
This case can be contrasted with Goldberg v G Korsunski Carmel School (2000) EOC ¶93-
074, where the Western Australian Equal Opportunity Tribunal was prepared to distinguish between
Orthodox Jews and other Jews according to the belief system of the Orthodox Jews who operated
the school in question.
169
Coulson v Austereo Pty Ltd (2003) 173 QGIG 1034; (2003) EOC ¶93-294 (digest).
170
[2008] QADT 32 (Unreported, Member Wensley, 12 December 2008); (2009) EOC ¶93-522
(digest).
171
Ibid [88]–[89]. Further, the onus was on the Society to demonstrate that it was a genuine
requirement: at [80].
172
Ibid [123]. Being a Catholic was ‘not essential and indispensable to carrying out the duties of
president, although it may well be desirable, and I think that the position, overall, would be
essentially the same if there were no requirement that a president be Catholic’: ibid.
173
Ibid [124].
38
4.5 ARE AMENDMENTS TO THE DISCRIMINATION LAWS
REQUIRED?174
The Commonwealth is one of the few jurisdictions in Australia not to prohibit
discrimination on the basis of religion or belief. The protection of individuals against
discrimination on the basis of religion or belief is one of the clearest elements of
international human rights law relating to religious freedom. The lack of a
Commonwealth prohibition of discrimination on the basis of religion has several
unfortunate consequences:
There are relatively few arguments for a complete failure to protect individuals from
discrimination on the basis of religion. The most common argument (setting aside
those arguments that are essentially an attempt to give preference to majority religions
174
Note: Since the time of writing of this paper exemptions in Victorian anti-
dicrimination law have been altered as summarised by the Victorian Equal
Opportunity and Human Rights Commission:
The new EOA 2010 has narrowed the grounds on which religious bodies can
discriminate against people to religious belief, sex and sexual orientation, as these
attributes may be connected to particular religious doctrines. Religious bodies and
schools will have to demonstrate why the discrimination is reasonably necessary to
avoid injury to the religious sensitivities of adherents of a religion. In employment,
religious bodies will have to demonstrate why having a particular attribute, for
example, being of a particular faith, is an inherent requirement of a job offered by that
body. In determining what an inherent requirement is, the nature of the religious body
and religious doctrines, beliefs or principles of that body must be taken into account. :
http://www.equalopportunitycommission.vic.gov.au/projects%20and
%20initiatives/eoa2010.asp, accessed 22 October 2010
39
or to treat certain minorities unequally) is that this prohibition would undermine
religious freedom by limiting the autonomy of religious groups that seek to favour co-
religionists. However, this is really an argument for exemptions to a prohibition of
religious discrimination, rather than an argument in favour of not prohibiting religious
discrimination even in circumstances which have no impact on religious freedom.
The question of the extent to which religious groups should be exempt from
discrimination laws in order to protect religious freedom, particularly religious
autonomy, is a controversial and complex one. Many Australians are employed in
organisations with some religious affiliation; religiously affiliated education and
healthcare services alone employ large numbers of employees. In Victoria alone, for
example, the Catholic Church is ‘involved in 482 schools (378 primary, 87 secondary,
15 combined and 2 special schools), 11 hospitals, 40 nursing and convalescence
homes, and 12 children’s welfare institutions.’175 Too wide an exemption for religious
groups has the potential to undermine the effectiveness and scope of any non-
discrimination regime, and to leave such people without legal protection. At present,
the exemptions are drawn rather widely and include quite vague terms, such as
‘religious susceptibilities’, that are only loosely connected with religious freedom. It
has been argued that it would be possible to create more nuanced exceptions without
significant additional interference with religious freedom (for example, allowing for
discrimination on the basis of sex, sexual orientation or marital status for employment
and termination but prohibiting discrimination on these bases during the term of
employment). Others have suggested that discrimination laws should apply to all but
the core functions of religious bodies or that religious bodies should not be allowed to
discriminate with respect to services for which they receive public funding. Yet others
have recommended a narrowing of the concept of an ‘inherent requirement’ of a job
so as to require that, to take advantage of this exception, religious organisations must
make clearer why they need to discriminate.176
Eliminating religious exemptions altogether, however, would put in danger core areas
of religious autonomy, including the choice of religious leadership, religious
educators and other core employees. Eliminating or significantly reducing exemptions
may make it difficult for religious organisations to contribute distinctively religious
services (for example, in areas such as education). It may even lead some religious
organisations to withdraw from some fields of service provision if they feel that they
are either required to behave in a manner that contravenes their religious beliefs or
that the religious rationale for operating such services has been undermined. Some
religious groups have argued for broader exemptions (or a wider reading of current
exemptions) to give protection to the wide range of activities in which religious
bodies and individuals are engaged, and to ensure that these activities can be operated
in a way that they find consistent with their religious beliefs and practices.177
175
According to a submission made by the Catholic Church to the Scrutiny of Acts and
Regulations Committee: see Scrutiny of Acts and Regulations Committee, Parliament of Victoria,
Exceptions and Exemptions to the Equal Opportunity Act 1995: Options Paper (2009) 116.
176
Ibid 112–18.
177
Ibid 118–19.
40
The balance between religious freedom and non-discrimination, and the way in which
this balance is reflected in exemptions for religious groups, is a matter of public
policy, rather than one that can be resolved through the simple application of legal
principle. Any solution that simply exempted religious bodies from all aspects of
discrimination law or which allowed no exemptions for religious groups at all would
be problematic, as it would undermine important human rights principles.
41
5 RELIGIOUS FREEDOM AND BILLS OF RIGHTS
5.1 INTRODUCTION
In most countries comparable to Australia, freedom of religion or belief is protected in
a statutory or constitutional bill of rights. In the United Kingdom and New Zealand,
for example, there are statutory human rights Acts, while in Canada and the United
States, religious freedom is protected by their respective constitutions. In Australia,
however, there is no comprehensive bill of rights in either form. At the time of writing
this report, the National Human Rights Consultation on a bill of rights was underway.
Given this process, and the fact that the Australian Human Rights Commission
already has a clear position in favour of a bill of rights, the arguments for and against
such statutory protection of rights in general will not be rehearsed here. Instead, the
current rights to religious freedom in Australia will be briefly outlined. Then, a
sample of cases from foreign courts looking at religious freedom will be discussed, to
give some sense of the ways in which introducing a right to religious freedom, as part
of a broader bill of rights, might change the legal protection of religious freedom in
Australia. Of course, as it is not yet clear whether there will be a bill of rights in
Australia or what its shape might be, let alone how it will be interpreted by the courts,
this discussion is somewhat speculative.
More recently, both the ACT and Victoria have introduced human rights Acts: the
Human Rights Act 2004 (ACT) (‘the ACT Act’) and the Charter of Human Rights
and Responsibilities Act 2006 (Vic) (‘the Victorian Charter’). These Acts require
courts, where possible, to interpret all legislation consistently with the human rights
protected by the Acts.178 Where that is not possible, certain courts can make
declarations that a provision cannot be interpreted compatibly with human rights. 179
This does not invalidate the law (as it can with a constitutional bill of rights), but it
178
Human Rights Act 2004 (ACT) s 30: ‘So far as it is possible to do so consistently with its
purpose, a Territory law must be interpreted in a way that is compatible with human rights.’ Charter
of Human Rights and Responsibilities Act 2006 (Vic) s 32(1): ‘So far as it is possible to do so
consistently with their purpose, all statutory provisions must be interpreted in a way that is
compatible with human rights.’
42
does require an explanation to be given to parliament as to what response the
government has to the declaration.180 In addition, it is unlawful for public authorities
to breach rights181 and some remedies are available when they do so.182
Both the Victorian Charter and the ACT Act prohibit discrimination on the basis of
religion (among other characteristics) and also set out a right to religious freedom. In
Victoria, the right to freedom of thought, conscience, religion and belief is set out in
s 14 of the Victorian Charter:
(1) Every person has the right to freedom of thought, conscience, religion and
belief, including—
(a) the freedom to have or to adopt a religion or belief of his or her
choice; and
(b) the freedom to demonstrate his or her religion or belief in worship,
observance, practice and teaching, either individually or as part of a
community, in public or in private.
(2) A person must not be coerced or restrained in a way that limits his or her
freedom to have or adopt a religion or belief in worship, observance, practice
or teaching.
This right to freedom of religion or belief is subject to the general limitation provision
in s 7, which provides that ‘[a] human right may be subject under law only to such
reasonable limits as can be demonstrably justified in a free and democratic society
based on human dignity, equality and freedom’, taking into account certain listed
factors. One difference between the Victorian Charter and international law is that
any aspect of freedom of religion or belief is subject to limitations under the Victorian
Charter, whereas under the ICCPR only manifestations of religious freedom can be
limited — the right to believe itself cannot be restricted. That being said, it is highly
unlikely that any direct infringement of the freedom to have a religion would be held
to be a reasonable limitation under s 7 of the Victorian Charter.183
The ACT provision, in s 14 of the ACT Act, is almost identical to s 14 of the
Victorian Charter, other than using the language of ‘everyone’, rather than ‘every
person’ (as in the Victorian Charter), and only stating that no-one may be ‘coerced’ in
a way that would limit his or her religious freedom, rather than ‘coerced or restrained’
(the wider formulation used in the Victorian Charter).
While the Victorian provision is clearly based on the ACT provision, neither is
directly taken from either relevant international treaties or the bills of rights in
comparable countries. For instance, freedom to ‘manifest’ religion or belief (used in
179
Human Rights Act 2004 (ACT) s 32; Charter of Human Rights and Responsibilities Act 2006
(Vic) s 36.
180
Human Rights Act 2004 (ACT) s 33; Charter of Human Rights and Responsibilities Act 2006
(Vic) s 37.
181
Human Rights Act 2004 (ACT) s 40B(1); Charter of Human Rights and Responsibilities Act
2006 (Vic) s 38(1).
182
Human Rights Act 2004 (ACT) s 40C(4); Charter of Human Rights and Responsibilities Act
2006 (Vic) s 39. In both cases, however, it is very difficult to obtain damages for breach of a right
protected under the Act.
183
See Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian
Charter and ACT Human Rights Act (2008) 188–9.
43
international instruments) has become freedom to ‘demonstrate’ religion or belief.
This may simply be an attempt to use a plainer term, but it may raise questions as to
whether the change affects the meaning and thus the relevance of international case-
law. The prohibition on coercion is wider than the international law equivalent in two
ways. First, as regards the Victorian Charter, it includes ‘restrained’, a much lower
threshold than ‘coerced’. Secondly, both jurisdictions prohibit coercion in relation to
manifestations of religion, as well as the right to have a religion or belief. While this
might be reasonable insofar as coercion is concerned, the notion that any restraints on
freedom to manifest a religion are prohibited goes further than international law and
there is little justification for this extension.
To date there have been no court decisions regarding s 14 of the Victorian Charter or
s 14 of the ACT Act.184
There have been a variety of cases brought under the religious freedom protections
found in bills of rights in comparable jurisdictions. These have included:
184
Although s 14 of the Victorian Charter was raised in a disciplinary hearing regarding a dentist
who told a patient suffering from a mental illness that she was afflicted by evil spirits and that she
should attend his church to be cured. The reliance on s 14 was unsuccessful, in part because the
Victorian Charter was not in force at the time the original decision was made. See Dental
Practitioners Board of Vitoria v Gardner (Occupational and Business Regulation) [2008] VCAT
908 (Unreported, Judge Harbison, Members Dickinson and Keith, 14 May 2008).
185
RS C 1970, c L-13.
186
R v Big M Drug Mart Ltd [1985] 1 SCR 295.
187
R v Edwards Books and Art Ltd [1986] 2 SCR 713.
188
Trinity Western University v British Columbia College of Teachers [2001] 1 SCR 772.
44
An unsuccessful challenge to the use by the prosecution of evidence of
a pastor in a murder trial. It was held that there was no general
privilege at common law for religious communications or confessions,
but that in some circumstances it would not be appropriate to allow the
use of religious confessions in evidence.189
Two examples of the more common types of cases are outlined in a little more detail
below.
In R (SB) v Governors of Denbigh High School (‘the Denbigh High Case’),193 the
House of Lords upheld the uniform policy of a public school that introduced a
requirement to wear a uniform that did not allow a student to wear the type of clothing
that she believed was required of a young Muslim woman (a jilbab). The school had
consulted widely with the local Muslim community and had developed a version of
the school uniform (a shalwar kameeze) that incorporated elements of Muslim
clothing which satisfied most Muslim members of the community and which the
student had accepted for a period of time. However, after her first two years at the
school, the student rejected this uniform and began wearing a jilbab instead.194
While the Court of Appeal found against the school, the House of Lords overturned
the decision and found that the policy did not breach the Human Rights Act 1998
189
R v Gruenke [1991] 3 SCR 263.
190
R v Taylor [2002] 1 Cr App R 37. See also R v Anderson [2004] NZCA 95 (Unreported,
Glazebrook, Paterson and Doogue JJ, 23 June 2004).
191
Surayanda v The Welsh Ministers [2007] EWCA Civ 893 (Unreported, Pill, Thomas and
Lloyd LJJ, 23 July 2007).
192
R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246.
193
[2007] 1 AC 100.
194
Ibid 119 [44]–[46] (Lord Hoffmann).
45
(UK). Their Lordships noted that this was not a judgment about every restriction on
religious clothing in schools but rather a case concerning ‘a particular pupil and a
particular school in a particular place at a particular time.’ 195 Several judgments held
that there was no breach of the student’s rights because she had been fully informed
of the uniform policy at the time of admission and had the option of attending other
schools that would let her wear her preferred form of clothing. 196 Not all of their
Lordships agreed with this analysis, but they all concluded that the policy of the
school was not in breach of the Human Rights Act. Relevant factors included the
trouble that the school had taken to consult about and develop a school uniform that
was respectful of Muslim requirements regarding apparel, the expertise of the school
on the extent to which the uniform helped to promote cohesion and contributed to the
improved performance of the school, and the concerns that some Muslim students had
expressed about being pressured into wearing a jilbab if the school included them in
the uniform.197
Thus, it is not simply a matter of saying that bills of rights do or do not allow public
institutions to limit the wearing of religious clothing. It will depend very much on the
particular context. While the House of Lords permitted the uniform policy in the
Denbigh High Case, the reasoning in that decision was subsequently applied in the
context of a school that prohibited a Sikh student from wearing a kara (a small bangle
195
Ibid 107 [2] (Lord Bingham of Cornhill).
196
Ibid 114 [25] (Lord Bingham of Cornhill), 120–1 [50] (Lord Hoffmann), 131 [87] (Lord Scott
of Foscote). The fact that other options are open to students was applied again in R (on the
application of X) v Headteachers and Governors of Y School [2007] HRLR 20; [2008] 1 All ER
249.
197
Denbigh High Case [2007] 1 AC 100, 117 [33]–[34] (Lord Bingham of Cornhill), 125 [65]–
[67] (Lord Hoffmann), 132–5 [94]–[99] (Baroness Hale of Richmond) (who was particularly
interested in the issue of women’s rights and their relationship with religious covering).
198
[2006] 1 SCR 256.
199
Ibid [3]–[5] (Charron J). McLachlin CJ, Bastarache, Binnie and Fish JJ concurred with the
judgment of Charron J.
200
Ibid [40] (Charron J).
201
Ibid [56]–[67] (Charron J).
46
that is religiously significant). In that case, the court disallowed the prohibition. 202
However, in another case, a no jewellery rule was permitted to be applied to a girl
who wanted to wear a ‘Silver Ring Thing purity ring’ as a symbol of her decision to
remain a virgin until marriage due to her Christian beliefs.203
In a Canadian case, for example, the Jehovah’s Witnesses claimed that they were
unable to buy land for a place of worship within the area zoned for places of worship
in a particular municipality (although this fact was contested by the municipality). 204
The Jehovah’s Witnesses first bought land in a residential zone and applied for re-
zoning. Their request was denied because of the costs of doing so and the tax burden
that this would place on rate payers. They then purchased a different lot in a
commercial zone and applied twice for re-zoning to allow them to build a place of
worship. These requests were denied without any reasons being given. The process
took over four years. A majority of the Supreme Court of Canada held that refusing to
give reasons or engage in a proper process with respect to the second and third
applications for permission to build was a breach of procedural fairness. In coming to
this conclusion, the right to ‘freely adhere to a faith and to congregate with others in
doing so’ was of ‘primary importance’. 205 The Court ordered that the second and third
decisions be set aside and that the municipality make the decision again in a
procedurally fair way, including giving reasons.206
In another Canadian case on the intersection of religion and property rights, several
orthodox Jews were prohibited by the by-laws of the building in which they lived
from setting up succahs on their balconies. 207 The succahs were small, temporary
dwellings that the appellants believed they were biblically required to live in during
the nine days of the festival of Succot. A majority of the Supreme Court of Canada
held that, so long as the appellants were conscious of access to emergency exits and
aesthetics in setting up their succahs, the property rights of other residents in the
building were only minimally impaired for a short period of time. The refusal to allow
202
R (on the application of Watkins-Singh) v Aberdare Girls’ High School Governors [2008]
EWHC 1865 (Admin) (Unreported, Silber J, 29 July 2008).
203
R (on the application of Playfoot) v Governing Body of Millais School [2007] HRLR 34.
204
Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village) [2004]
2 SCR 650.
205
Ibid [9] (McLachlin CJ). Iacobucci, Binnie, Arbour and Fish JJ concurred.
206
Ibid [31]–[33] (McLachlin CJ). Note that this was no guarantee of a decision in favour of the
Jehovah’s Witnesses: they were not entitled to a favourable decision, simply to proper consideration
and process. For an example of the way in which the Victorian Charter is beginning to influence
planning decisions, see ‘Hobsons Bay Planning Scheme Amendment C58 & Application for Permit
A0613422 Blenheim Road Mosque & Public Park: Panel Report’, September 2008
<http://www.dse.vic.gov.au/Shared/ats.nsf/4f257bdd04da3313ca256d100005e401/2c8ee5d347a989
37ca2574e10072d5d0/$FILE/Hobsons%20Bay%20C58%20Panel%20Report.pdf>.
207
Syndicat Northcrest v Amselem [2004] 2 SCR 551.
47
them to fulfil this religious obligation, by contrast, was a significant infringement on
religious freedom.208
The cases from other jurisdictions discussed above demonstrate the wide range of
ways in which religious freedom can be limited — from zoning laws, to school
uniforms, to the destruction of animals. In Australia there is no right to bring a case
based solely on a breach of religious freedom (rather than raising religious freedom in
a case brought on another basis, which can be done under the Victorian Charter or
ACT Act). Courts may sometimes take issues of religious freedom into account
through, for example, the interpretation of laws consistently with human rights as
discussed in chapter 2. However, the extent to which any particular court or tribunal
will choose to take religious freedom into account in making decisions is a matter of
discretion in many cases. Religious minorities will usually find it more difficult to
have their interests or concerns taken into account when general laws, policies or rules
are adopted that might impact on their religious belief. They are likely to be particular
beneficiaries of a right to take direct legal action to enforce their rights. In addition,
such statutory protection may increase the awareness of the impact of such laws,
policies and rules on religious groups, and encourage negotiated solutions to cases in
which religious freedom is impacted.
208
Ibid [82]–[90] (Iacobucci J). McLachlin CJ, Major, Arbour and Fish JJ concurred.
48
6 RELIGIOUS VILIFICATION / HATE SPEECH LAWS
6.1 INTRODUCTION
Laws that prohibit religious vilification or religious hate speech of various kinds have
a complicated relationship with religious freedom. On one hand, if religious groups or
believers are subject to vilification, it can have deeply hurtful personal effects, create
fear within religious communities and potentially intimidate people out of attending
religious services or practising their religion (eg through the wearing of clothes or
symbols). At its worst, speech demonising and dehumanising groups has been a
preparatory basis for the most serious crimes, including genocide, against those
groups. On the other hand, particularly when they are drawn too widely, religious
vilification laws can have a chilling effect on religious speech and suppress legitimate
criticism of religion.
While racial vilification laws are common in Australia, only Queensland, Tasmania
and Victoria have prohibited religious vilification, although other jurisdictions have
considered it.209 For the same reasons as discussed above at 4.3 in relation to
discrimination law, the definition of ‘racial’ in racial vilification laws can extend to
groups that share a common religious tradition as part of their ethnicity (such as Sikhs
and Jews).210 Thus, racial vilification laws give some protection to some groups that
might also be considered to be religious. However, this protection is not
comprehensive and is not a protection from religious hate speech as such.
The Commonwealth does not prohibit religious vilification. However, the Criminal
Code (Cth) contains a sedition-based offence of ‘urg[ing] a group or groups (whether
distinguished by race, religion, nationality or political opinion) to use force or
violence against another group or groups (as so distinguished)’ which would threaten
the peace, order and good government of Australia. 211 This offence has a limited
overlap with religious vilification laws.
International law requires states to prohibit some forms of hate speech. The ICCPR,
for example, in art 20(2) states: ‘Any advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility or violence shall be prohibited
by law.’ Australia, however, has entered a reservation to this provision that states:
Australia interprets the rights provided for by articles 19, 21 and 22 [212] as consistent
with article 20; accordingly, the Commonwealth and the constituent States, having
legislated with respect to the subject matter of the article in matters of practical
concern in the interests of public order (ordre public), the right is reserved not to
introduce any further legislative provision on these matters.
209
Lawrence McNamara, ‘Salvation and the State: Religious Vilification Laws and Religious
Speech’ in Katharine Gelber and Adrienne Stone (eds), Hate Speech and Freedom of Speech in
Australia (2007) 145, 146.
210
See, eg, Jones v Scully (2002) 120 FCR 243; Toben v Jones (2003) 129 FCR 515; Miller v
Wertheim (2002) EOC ¶93-223 (all dealing with racial vilification of Jews under the Racial
Discrimination Act 1975 (Cth)).
211
Criminal Code (Cth) s 80.2(5). For a discussion of this offence, see Simon Bronitt, ‘Hate
Speech, Sedition and the War on Terror’ in Katharine Gelber and Adrienne Stone (eds), Hate
Speech and Freedom of Speech in Australia (2007) 129.
212
Freedom of expression, assembly and association, respectively.
49
6.2 CURRENT AUSTRALIAN LEGISLATION PROHIBITING RELIGIOUS
VILIFICATION
As noted above, Queensland, Tasmania and Victoria are the only Australian
jurisdictions which have introduced religious vilification laws. The laws have two
main components: the prohibition (usually including both a civil and criminal
element) and exceptions that make clear that certain types of speech do not fall within
the prohibition.
6.2.2 Exceptions
Section 11 of the Racial and Religious Tolerance Act provides:
(1) A person does not contravene section 7 or 8 if the person establishes that the
person’s conduct was engaged in reasonably and in good faith—
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate
made or held, or any other conduct engaged in, for—
(i) any genuine academic, artistic, religious or scientific
purpose; or
213
McNamara, above n Error: Reference source not found, 147.
214
Anti-Discrimination Act 1991 (Qld) s 131A also makes it a criminal offence to engage in
‘serious’ religious vilification, ie religious vilification in a way that includes threatening physical
harm to person or property or inciting others to do so, but the criminal provisions are almost never
used because of difficulties with proof and certain procedural hurdles.
215
Racial and Religious Tolerance Act 2001 (Vic) s 8(2) provides that conduct can be a single
instance or multiple instances.
216
Racial and Religious Tolerance Act 2001 (Vic) s 15. See also Anti-Discrimination Act 1998
(Tas) s 21; Anti-Discrimination Act 1991 (Qld) s 122.
217
Racial and Religious Tolerance Act 2001 (Vic) ss 17–18. See also Anti-Discrimination Act
1991 (Qld) s 133. There is no equivalent provision in the Anti-Discrimination Act 1998 (Tas).
50
(ii) any purpose that is in the public interest; or
(c) in making or publishing a fair and accurate report of any event or
matter of public interest.
(2) For the purpose of subsection (1)(b)(i), a religious purpose includes, but is
not limited to, conveying or teaching a religion or proselytising.
Unlike the Anti-Discrimination Act 1991 (Qld) and the Anti-Discrimination Act 1998
(Tas), the Racial and Religious Tolerance Act does not contain an exemption for the
publication of material in circumstances in which the publication would be subject to
a defence of absolute privilege in proceedings for defamation. 218 However, it does
contain an exemption for conduct engaged in for a genuine religious purpose, which
is not included in either of the other Acts. The Racial and Religious Tolerance Act
does not define what a ‘genuine religious purpose’ is, although this has been
considered in a case discussed below.
Catch the Fire claimed that its statements were accurate, that its actions were
reasonable and undertaken in good faith, and that the seminar and publications were
conducted and published for a genuine religious purpose and in the public interest. On
this basis, it defended the claims of religious vilification.
The Victorian Civil and Administrative Tribunal upheld the ICV’s complaint, finding
that the cumulative effect of the statements and publications was hostile, demeaning
and derogatory to Muslims and their faith, and that they were likely to incite others to
religious hatred, contempt and ridicule. Catch the Fire successfully appealed the
decision to the Victorian Court of Appeal, which set aside the orders of the Tribunal
and remitted the decision to be heard by a different Tribunal member. Ultimately, the
218
Anti-Discrimination Act 1991 (Qld) s 124A(2)(b); Anti-Discrimination Act 1998 (Tas) s 55(b).
219
See, eg, Fletcher v Salvation Army Australia [2005] VCAT 1523 (Unreported, Member
Morris P, 1 August 2005) [18], where the President of the Victorian Civil and Administrative
Tribunal recommended that consideration be given to requiring that people seek leave to bring a
religious vilification case so as to ensure that the reputation of the legislation is not undermined by
baseless claims.
220
[2004] VCAT 2510 (Unreported, Member Higgins V-P, 22 December 2004); (2005) EOC
¶93-377 (digest); appeal allowed (2006) 15 VR 207.
51
matter was settled by the parties in an out of court settlement, leaving the key question
of whether the conduct amounted to vilification unresolved after many years and a
lengthy process of litigation.
The key principles for interpreting the Racial and Religious Tolerance Act which
emerged from this case included that:
incitement includes words and actions that actually incite others, and
also those that are calculated to encourage incitement but do not have
that effect in practice;221
the Act does not ‘prohibit statements concerning the religious beliefs
of a person or group of persons simply because they may offend or
insult the person or group of persons’ — that which incites hatred is
distinct from that which is offensive;222
There were areas of disagreement between the judges which have still not been
resolved. Perhaps the most significant of these is whether ridicule or contempt
expressed towards a religion, as compared to religious believers, is sufficient for the
purposes of the Act. Nettle JA considered that the two were distinct, while
recognising that there may be circumstances in which attacks on a religion might
amount to religious vilification. Neave JA put less emphasis on the distinction.
Ashley JA did not decide the issue.226
Nettle JA held that the conduct need not be motivated by an intention to incite hatred,
contempt etc. on the basis of religion. He considered that it is enough that the
‘conduct incite hatred or other relevant emotion towards a person or group of persons
which is based on their religious beliefs’. Neave JA, however, thought that there must
usually be some link, although, for practical purposes, there usually would be, so the
distinction may not relevant in most cases.227
221
Catch the Fire Ministries Case (2006) 15 VR 207, 211–12 [14] (Nettle JA), 254 [154] (Neave
JA).
222
Ibid 212 [15] (Nettle JA).
223
Ibid 212 [16] (Nettle JA).
224
Ibid 249 [132] (Ashley JA), 254–5 [158]–[159] (Neave JA), though see Nettle JA at 212–13
[16]–[19] that some degree of reasonableness may be assumed for most, although not all, audiences.
225
Ibid 240–2 [90]–[98] (Nettle JA).
226
Ibid 218–19 [32]–[34] (Nettle JA), 249 [132] (Ashley JA), 258 [176] (Neave JA).
227
Ibid 214 [24] (Nettle JA), 253 [150]–[152] (Neave JA).
52
Nettle JA also took the view that the Tribunal erred in criticising the views about
Islam expressed by the relevant church minister as unbalanced and untrue, and in
failing to take proper account of the exhortations of the minister to love, minister to
and attempt to convert Muslims, as creating greater balance and less likelihood of
incitement. Neave JA held that some account could be taken of both truth and
balance. Ashley JA noted the problematic way in which the arguments before the
Tribunal turned in part on whether certain claims made about Islam were objectively
true — a matter which he correctly noted is not susceptible to determination by a
secular tribunal.228
228
Ibid 219–20 [36], 233 [73] (Nettle JA), 247 [121] (Ashley JA), 259 [178]–[179] (Neave JA).
229
Nicholas Aroney, ‘The Constitutional (In)Validity of Religious Vilification Laws:
Implications for their Interpretation’ (2006) 34 Federal Law Review 287. See also Catch the Fire
Ministries Case (2006) 15 VR 207, 246 [113] (Nettle JA), 264 [203] (Neave JA), who held that the
Racial and Religious Tolerance Act 2001 (Vic) did not breach the constitutional prohibition.
230
[2001] QADT 20 (Unreported, Member Sofronoff P, 8 November 2001).
231
Ibid p 8.
232
Human Rights and Equal Opportunity Commission, Isma – عListen: National Consultations
on Eliminating Prejudice against Arab and Muslim Australians (2003) chh 2 and 3. See also
Raymond Chow, ‘Inciting Hatred or Merely Engaging in Religious Debate? The Need for Religious
Vilification Laws’ (2005) 30 Alternative Law Journal 120.
53
vilification. It has done so on the basis of the numerous concerns about the level of
religious vilification that occurs in Australia, and that leads to a sense of being
excluded and alienated from Australian society by those who experience it.233
There are at least two key concerns about responding to this problem with vilification
laws. The first is that such laws will have a chilling effect on speech about religions.
Even if the laws are interpreted relatively narrowly (and that is not guaranteed), those
with legitimate criticisms to make of particular religious groups, practices or beliefs
may be intimidated out of making such comments because of the potential for actions
to be brought against them. In addition, some religious groups are concerned that they
will not be able to speak out to condemn other religions as false and their own as
exclusively true without being in danger of action being taken against them. This
threatens both religious freedom and freedom of expression. 234 While freedom of
expression is not an absolute value, it should only be limited for good reason.
The second concern is that religious vilification laws may be ineffective or even
counter-productive. There is little evidence that countries that have religious
vilification laws experience less religious vilification than those which do not (nor
that those Australian States which have such laws are less prone to religious
vilification than those which do not). The Catch the Fire Ministries Case gave a great
deal of profile (both nationally and internationally) to the comments the subject of the
case that were derogatory of Islam — far more than they would have received had
there been no such case.235 It is unclear whether the case helped or harmed the
development of greater religious tolerance in Victoria, or Australia more generally, or
created an atmosphere which lessened the risk of physical or mental harm to religious
minorities.236
The question of whether religious vilification laws are necessary and an appropriate
way of dealing with religious vilification is a complex one. If such laws are adopted,
it is important that they be drafted in a manner that is alive to the potential of such
laws to restrict freedom of religion or belief as well as freedom of expression. The
prohibition set out in the ICCPR (‘Any advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility or violence shall be prohibited
by law’) is narrower, and more focused on clearer and more clearly dangerous
outcomes, than the current State laws. This is also the formulation accepted by the
Human Rights and Equal Opportunity Commission in its report on religious freedom,
in which it rejected modifying the current racial vilification laws to include religious
233
Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and
Belief (1998) iii, ix, ch 5.
234
John Perkins, ‘Religion and Vilification’ (2005) 17 Dissent 53; Joel Harrison, ‘Truth, Civility,
and Religious Battlegrounds: The Contest Between Religious Vilification Laws and Freedom of
Expression’ (2006) 12 Auckland University Law Review 71.
235
Hanifa Deen, The Jihad Seminar (2008) 262 describes the way in which the media coverage
of the case allowed ‘vilification through the back door’ day after day.
236
There is no empirical evidence to support the claim that religious vilification laws lessen
vilification against religious minorities or any of the other harmful consequences of vilification.
Professor Baker has argued that in some circumstances such laws may prove counter-productive and
put minorities at greater risk, although there is no evidence to support this position either: see Edwin
Baker, ‘Autonomy and Hate Speech’ in Ivan Hare and James Weinstein (eds), Extreme Speech and
Democracy (2009) 139, 150–5.
54
vilification, on the basis that they were too broad for the purposes of religious
vilification.237
237
Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and
Belief (1998) 136–7.
55
7 RELIGION IN THE AUSTRALIAN COURTS: SOME KEY
ISSUES
7.1 INTRODUCTION
One forum in which religious freedom is at stake is the court system. People may be
compelled to play a part in the court system, as parties or witnesses, and the traditions
and practices of the courts may create tension with the religion or belief of those who
participate. Further, in a multi-religious society, it is important that those who play
official roles in court — as judges, lawyers, jurors or court officials — should be able
to carry out those roles without inappropriate constraints on their religious freedom.
This chapter briefly explores three key areas of potential tension between religious
freedom and the court system: the taking of oaths, the wearing of religious apparel
and the role of the courts in intra-religious disputes.
7.2 OATHS / AFFIRMATIONS
One way in which individuals’ religion or belief can come into conflict with the court
system is in being required to take an oath (which, for the purpose of this report, is
defined as involving a religious element, as opposed to a secular affirmation). Some
of the contexts in which Australians might be required to make an oath or affirmation
include:
This section will focus on oaths being used by witnesses in court, but also has some
relevance to other circumstances in which a person is required to take an oath. The
requirement to take an oath in order to take up a public office is one that should be
treated with care and not used in a way that excludes certain people from office on the
basis of their religion or belief. One oath is prescribed by the Australian Constitution
(in s 42, which requires all members of the Commonwealth Parliament to take an oath
or affirmation of allegiance in the prescribed form before taking office) but all others
are prescribed by statute and thus can be changed.238
238
See, eg, the form of judicial oath or affirmation set out in the Schedule to the High Court of
Australia Act 1979 (Cth).
56
religion against that person’s will.239 Australia has a generally good track record in
this respect.
A variety of people have reasons for not wishing to swear an oath, including people
who have no religious faith and those whose religious faith precludes oath-taking
altogether or in particular contexts. While it may be appropriate to give people a
choice between taking an oath and affirming, it is not consistent with religious
freedom to require people to give reasons for preferring one option or the other, as
was once the case in Australian law.240 Nor should any inference be drawn about the
credibility of a person based on the option that they select; such an inference is not
permitted by Australian law.241 At present, however, it is permissible in limited
circumstances to cross-examine a witness about why they chose not to swear an
oath;242 it is questionable as to whether this is compatible with religious freedom or
indeed the right to privacy. (For example, a Muslim woman may not want to swear an
oath while she is menstruating but may also be embarrassed to discuss this reason in
public.243)
The question of whether even having the option of swearing a religious oath is a
breach of religious freedom because it ‘forces’ the witness to reveal their religion has
arisen in a number of contexts. In a Canadian case, the Court considered that the fact
there were a variety of alternative approaches available (including affirmation) and
that the witness did not need to reveal his reasons for selecting one option rather than
another meant that there was no infringement of religious freedom. 244 However, a
number of commentators and commissioners in Australia, and other countries,
continue to suggest that using an oath is an outdated practice that should be replaced
by a single, solemn affirmation to tell the truth that could be taken by people of all
religions or no religion. It is argued that this puts all witnesses on an equal footing,
simplifies the process of swearing, and takes an inappropriate religious element out of
what should be a secular court system. 245 Others have argued that the ability to take
239
Buscarini v San Marino (2000) 30 EHRR 208, in which the European Court of Human Rights
upheld a complaint by parliamentarians who were forced to take their oaths of office by swearing
‘on the Holy Gospels’. The Court held (at 219 [34]) that this ‘required them to swear allegiance to a
particular religion’ in breach of art 9 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (‘the European Convention on Human Rights’), opened for signature
4 November 1950, 213 UNTS 221 (entered into force 3 September 1953). The same position was
taken by the Supreme Court of the United States in Torcaso v Watkins, 367 US 488 (1961), under
the First Amendment to the United States Constitution.
240
For a history of the oath in Australia, see Morris Forbes, ‘The Truth, the Whole Truth and
Nothing but the Truth’ (2005) 43(3) Law Society Journal 72; Mark Weinberg, ‘The Law of
Testimonial Oaths and Affirmations’ (1976) 3 Monash University Law Review 25. These historical
reviews make clear the extent to which the taking of oaths has historically been used in a manner
incompatible with religious freedom.
241
This is currently the case in Australia. See, eg, Evidence Act 1995 (Cth) s 21(5): ‘Such an
affirmation has the same effect for all purposes as an oath.’
242
Kamm v The Queen [2008] NSWCCA 290 (Unreported, Giles JA, Latham J and Matthews AJ,
10 December 2008), although this case also makes clear that significant constraints apply to doing
so. See also R v VN (2006) 15 VR 113.
243
R v Mehrban (Razia) [2002] 1 Cr App R 40, discussed in D C Ormerod, Case Comment,
‘Trial: Oath — Witness’ Decision to Affirm Rather Than Swear’ [2002] Criminal Law Review 439.
In the same case, a man explained that he could not swear on the Koran because he was unclean, as
he was unable to wash himself.
244
R. v Anderson [2001] 7 WWR 582; see also R. v Robinson [2005] 191 Man R (2d) 156.
245
For a criticism of the single, secular affirmation, see Michael Bennett, ‘The Right of the Oath’
(1995) 17 Advocates’ Quarterly 40. He argues (at 44) that it might be an aspect of a fair trial to
57
the oath in religious form is an aspect of religious freedom and that it enables the
court to bind the conscience of religious people in a way that a secular affirmation
does not.246 It is clear that the capacity to take the oath in religious form is very
important to at least a group of people. In New Zealand recently, an inquiry into
modernising the oath decided against removing the option of including a religious
element.247
Those who choose to take an oath should be able to do so in compliance with their
own religious traditions and beliefs. Some allowance is made for this in the federal
courts. Pursuant to the Evidence Act 1995 (Cth), most people giving evidence in a
federal court (such as the High Court, Federal Court or Family Court) and court
interpreters must first make an oath or affirmation, which must be in the form set out
in the Schedule to the Act or something similar.248 The oath for a witness set out in the
Schedule is: ‘I swear (or the person taking the oath may promise) by Almighty God
(or the person may name a god recognised by his or her religion) that the evidence I
shall give will be the truth, the whole truth and nothing but the truth.’ In the
alternative, a person may affirm by saying: ‘I solemnly and sincerely declare and
affirm that the evidence I shall give will be the truth, the whole truth and nothing but
the truth.’249
While a variety of forms may be used for taking the oath, the standard form of the
oath is more consistent with Christianity than most other religions. The alternative to
the term ‘Almighty God’ in the Schedule to the Evidence Act refers to ‘a god’
recognised by the witness’s religion. First, this formulation of the rule assumes a
monotheistic tradition (or at least that it is appropriate to select a single god by whom
to swear). Secondly, it assumes a religion that is theistic (as compared, for example, to
some forms of Buddhism). Finally, the use of the capital in ‘Almighty God’ and the
lower case in ‘a god recognised by [the witness’s] religion’ is also reflective of
Christian tradition, rather than religiously neutral. This may be compared to a form of
the oath taken in the United Kingdom, which states: ‘I swear by [substitute Almighty
God/Name of God (such as Allah) or the name of the holy scripture] that the evidence
I shall give shall be the truth, the whole truth and nothing but the truth.’ 250 While this
is very similar in form to the Australian standard form, it pays more respect to the
equality of a variety of religious belief systems. (It is not, however, the official form
ensure that witnesses’ consciences are bound by the best method possible.
246
Weinberg, above n Error: Reference source not found, 40; Criminal Law Revision Committee,
Eleventh Report: Evidence (General), Cmnd 4991 (1972) 163ff.
247
While the Bill implementing the oath modernisation process, the Oaths Modernisation Bill
2005 (NZ), is yet to be passed, in the First Reading Speech to the Bill, the Minister for Justice noted
that ‘there was clear support from public submissions for retaining the current values and beliefs,
particularly loyalty to the Queen, reference to religious belief, and promises as to how an office or
role should be carried out’: New Zealand, Parliamentary Debates, 17 May 2005, 20 647 (Phil Goff).
See also New Zealand Ministry of Justice, Review of Oaths and Affirmations: A Public Discussion
Paper (2004).
248
Evidence Act 1995 (Cth) ss 21–22.
249
These provisions are taken up in template form in New South Wales, Tasmania and Norfolk
Island, and will shortly also be picked up in Victoria.
250
See Judicial Studies Board, Equal Treatment Bench Book (2008) 3-11 [3.2.3]. See also at 3-
12–3-15 [3.2.3], which also gives details about the way in which a variety of religious groups might
wish to make an oath.
58
set out in the Oaths Act 1978 (UK), which is even more closely aligned to the Judeo-
Christian practices than the Australian standard form.251)
The way in which divergences from the standard form are handled by courts in
practice can make a difference to how real the right of minorities to use an alternative
form is (particularly when it requires such things as alternative holy books). In the
Federal Court, for example, the onus on informing the court if ‘special arrangements’
are needed for taking an oath is placed on the legal representatives of the parties (with
no guidelines for those who are not represented) and must be given at least 24 hours
before the witness is due to give evidence. 252 This change to previous practice was
undertaken to provide the possibility of witnesses taking the oath in a variety of
forms, while recognising that the diversity of religions may be such that the courts
would not be able to provide for them all without notice. The Federal Court does in
practice have copies of the Bible, Koran and the Tanach available for those who wish
to swear on them and the registry staff assist those who have other needs that are
drawn to their attention.
This approach may be contrasted to that recommended as best practice in the United
Kingdom. The Judicial Studies Board in the United Kingdom has developed an Equal
Treatment Bench Book,253 which sets out a range of useful information about different
religious beliefs, including information on what types of oaths or affirmations might
be appropriate for different religious groups, while recognising that there is a diversity
of opinion within religious groups. It also sets out useful advice to judges and court
officials as to dealing with oaths in a manner that treats all religions equally and with
appropriate respect. These include:254
Keeping religious books covered when not in use so that they are not
touched directly by court staff and ensuring that such books are stored
appropriately.
Recognising that in some religions those who are swearing may need
to remove their shoes or cover their heads.
251
Oaths Act 1978 (UK) s 1(1): ‘The person taking the oath shall hold the New Testament, or, in
the case of a Jew, the Old Testament, in his uplifted hand, and shall say or repeat after the officer
administering the oath the words “I swear by Almighty God that . . . . . .”, followed by the words of
the oath prescribed by law.’
252
Federal Court of Australia, Practice Note No 16: Oaths and Affirmations (30 April 2001) [4].
253
Judicial Studies Board, Equal Treatment Bench Book (2008).
254
Ibid 3-10–3-11 [3.2.2].
59
them that asking for a particular scripture is not an inconvenience.
They should not be persuaded to swear an oath on the New Testament
for the sake of convenience.’ If the relevant scriptures or books are not
available, they should be encouraged to bring their own copies to
court.
This proactive approach to ensuring that people understand their options, and have the
best opportunity to take an oath in a suitable form, may be better practice than simply
asking a witness if they wish to swear or affirm once they are in the court room and
hoping that their legal representatives (if they are a party) or the legal representatives
of the party calling them to give evidence (if they are not) have informed them about
their options. It should be noted, however, that there are concerns that a more pro-
active approach by the courts might be considered to be intrusive and this is one
reason that the Federal Courts rely on legal representatives.
While there has been considerable reform of the law of oaths from the times when
people were effectively excluded from giving evidence because of their religious
beliefs (or lack of religious beliefs) the time may be right to reflect on whether the
current system best serves Australia’s multi-religious society. Consideration should be
given as to whether a single, non-religious affirmation might better protect the
equality of witnesses, regardless of their religious beliefs, and simplify the process in
a multi-religious society, where it may be difficult to ensure that all religious forms of
oath-taking are able to be administered in all courts. In the alternative, better
provision should be made for all witnesses to be informed in advance about their
options regarding the oath or affirmation and for the needs of religious minorities to
be catered for.
wearing clothing that completely covers the arms and legs (and, in
some instances, hands);
It would be impossible to regulate to resolve all the problems which people from
minority religions may experience in the court system regarding apparel and
appearance, as many decisions need to be made on a case-by-case basis. Judicial
training and awareness of religious differences may be important to ensure that the
religious dimensions of decisions are understood by judges. For example, judges who
60
would normally expect men to remove headwear when entering a court room should
not do so if a man is wearing a head-covering in compliance with his religion (for
example, a Jewish yarmulke or Sikh turban).255 However, there may be some
occasions on which it is not appropriate to allow some aspect of religious apparel in
courts. For example, a Canadian judge’s decision to forbid a Sikh defendant from
wearing his kirpan (a ceremonial knife) was upheld as not breaching the Canadian
Charter of Rights and Freedoms in circumstances where the defendant was accused of
a violent assault and there was good reason to be concerned for the safety of others in
the court room.256 The same logic would not apply to a Sikh juror or lawyer who
posed no such threat.
It is important that judges be conscious themselves and, where appropriate, assist the
jury to be conscious of not relying on stereotypes that certain religious clothing or
appearance may evoke and to ensure that a case is judged on its merits.
One issue that has not yet been the subject of reported cases in Australia, but will
most likely require a legal solution, is the right of those participating in the court
system to wear religious clothing that completely covers or obscures the face. In most
cases this will be a Muslim woman claiming the right to wear a covering such as a
burqa or niqab that covers her face. Relatively few Australian Muslims do wear such
comprehensive facial covering, so the issue is not likely to arise with any regularity,
but it is included here for the sake of completeness.
Women who cover their faces may participate in the legal system as judges, lawyers
court officials or witnesses. There seems to be little reason to require a lawyer or
court official to uncover their face, unless there are questions about their identity
(which can probably be resolved quickly and outside of open court in most cases).
The only problem that may arise is whether they can be heard clearly and this should
be able to be resolved by using appropriate microphones. Whether complete face
covering is compatible with judicial office is a more complicated question and one
that is not addressed in detail here, as it is not currently likely to be in issue in
Australia.
The area of greatest contention likely to arise in Australian courts is whether a woman
should be permitted to give evidence with her face covered if she wishes to do so for
religious reasons. There may be a number of legitimate reasons that the opposing
party in a case may wish to have a witness remove her head-covering. (There is also
the illegitimate reason of wanting to intimate or shame the witness out of giving
evidence. The danger of this occurring must be kept in mind.) First, there may be the
question of identity — is the witness who she claims to be and/or do other people
recognise her as, for example, the person who was present at a crime scene?
Secondly, there may be the need to assess the level of physical injury done to a
witness. This may require the removal of the head-covering or other items of clothing
to demonstrate physical injuries. Finally, there is a question as to whether the judge or
255
In R v Laws (1988) 41 OR (3d) 499, the Ontario Court of Appeal held that a trial judge had
breached the Canadian Charter of Rights and Freedoms by excluding members of the public from
the court room for wearing headdresses for religious reasons. The Court of Appeal held that he had
erred in holding that the Charter only applies to ‘major, recognizable religion[s]’.
256
Hothi v The Queen [1985] 33 Man R (2d) 180.
61
jury will be able to assess the credibility of the witness properly in the absence of
being able to form judgements based on demeanour/facial expression.
The first two of these issues may be able to be dealt with in a way that is fair to all the
parties involved without the woman being required to remove her head-covering in
court. It may be possible for an identity process to take place outside the court room
in a single-sex environment to ensure that the person giving evidence is who she says
that she is. A more complicated issue arises if there is a question as to whether that
person can be recognised by other witnesses. The court may need to think creatively
about the best way of ensuring that this evidence is tested while not exposing the
witness to any more intrusion to her religious freedom than is strictly necessary. This
may be able to be achieved by the use of photographs, a video link, clearing the court
of all but those essential to the particular evidence, etc. What is appropriate in all the
circumstances will depend on the importance of the evidence, the beliefs of the
particular witness and other relevant factors, including the facilities available in a
particular court. As with several other areas discussed in this report, this is a case in
which religious freedom needs to be balanced against other important interests,
particularly the right to a fair trial.
The issue of whether the credibility of a witness can be properly tested if her face is
covered has arisen in New Zealand, in the District Court of Auckland case Police v
Razamjoo (‘Razamjoo’).257 Two witnesses for the informant wished to wear burqas
‘covering the entire face and body’, so that the only visible part of the face was a
narrow slit in the head-covering through which the eyes could be seen. The facts of
the particular case meant that the credibility of the two witnesses would be an
important issue.258 The judge recognised the religious significance of wearing the
burqa to the witnesses and the distress that they could be caused if they were required
to appear in a public court room without it. After listening to one of the witnesses
giving evidence, while wearing a burqa, about its importance to her, the judge said
that evidence given in this fashion would ‘consciously or unconsciously, be accorded
less weight’.259 In addition, while accepting that there were real problems with using
demeanour to assess credibility, the judge did point out several situations in which
seeing facial expressions could be important to determining credibility, for example
an abrupt change in facial expression, a change from making eye contact to refusing
to do so and ‘even a look of downright hatred at counsel’ when a particular question
was asked.260 The judge also took into account the need for criminal trials to be public
to maintain the confidence of the public and to ensure the identity of the person giving
evidence.
In the circumstances, the judge held that, while the relevant witnesses could wear
scarves or hats which covered their hair, they would need to show their faces. Screens
were used so ‘that only Judge, counsel, and Court staff (the latter being females)
[were] able to observe the witness’s face. Appropriate ancillary arrangements [were]
to be made so that when the witness [was] entering and leaving the courtroom the
intent of [the] decision [was] not defeated.’261
257
[2005] DCR 408.
258
Ibid [12] (Judge Moore).
259
Ibid [71] (Judge Moore). At [69], listening to the witness was described as ‘slightly unreal’
and not giving a full sense of the person.
260
Ibid [78] (Judge Moore).
261
Ibid [110] (Judge Moore).
62
This type of approach demonstrates that courts do have the capacity to come to
creative solutions that balance the right to religious freedom and the right to a fair trial
in particular cases. That being said, it is important for courts to be cautious about
placing too much weight on demeanour when making these decisions. Despite the
comments of the learned trial judge in Razamjoo about the ways in which demeanour
can be important to judging credibility, there are serious questions, as Kirby J has
noted in another context, about the extent to which judges are capable of evaluating
‘credibility from the appearance and demeanour of witnesses in the somewhat
artificial and sometimes stressful circumstances of a courtroom’ — in particular,
culture can affect judgments about demeanour.262 In any event, many questions of
demeanour (for example, silences, delays in responding to questions) do not require
the judge to see a witness’s face.
Given the serious distress that removing a face covering in a public place can cause to
a woman who usually covers herself, and given the intrusion on religious freedom
involved in requiring a woman to take off her veil, courts should give serious
consideration to whether evidence can properly be taken with the woman’s face
covered. They should not assume that the veil must be removed whenever a woman
gives evidence.263 In New Zealand, the Evidence Act 2006 (NZ) allows witnesses to
give evidence ‘in an alternative way’ on the grounds of, among other things, the
‘linguistic or cultural background or religious beliefs of the witness’. 264 Such a
provision might well be helpful in Australian law to encourage judges to think
seriously about ways in which evidence can be given while minimising the intrusion
on the religious freedom of witnesses. As the United Kingdom Judicial Studies Board
notes:
It is important to acknowledge from the outset that for Muslim women who do
choose to wear the niqab, it is an important element of their religious and cultural
identity. To force a choice between that identity (or cultural acceptability), and the
woman’s involvement in the criminal, civil justice, or tribunal system (as a witness,
party, member of court staff or legal office-holder) may well have a significant
impact on that woman’s sense of dignity and would likely serve to exclude and
marginalise further women with limited visibility in courts and tribunals. This is of
particular concern for a system of justice that must be, and must be seen to be,
inclusive and representative of the whole community. 265
63
contact is untrustworthy or being dishonest). It is also essential to ensure, to the
greatest extent possible, that religious stereotypes are not permitted to influence the
outcome of legal proceedings.
The Judicial Commission of New South Wales has given a series of useful examples
of how courts can be made more welcoming and inclusive for people of all religious
faiths, including consideration of issues such as the timing of court hearings:
If requested, wherever possible:
Make the appropriate allowances for those who need to pray at certain times
of the day (for example, Muslims) — that is, have a break in proceedings.
Make the appropriate allowances for relevant holy days of the week and not
insist that someone be called to give evidence on that day, or when they are
meant to be at their place of religious worship.
Make the appropriate allowances for (particularly important) religious
festivals and not insist that someone be called to give evidence during such
times.266
266
Judicial Commission of New South Wales, Equality Before the Law Bench Book (2007) 4406
[4.4.6].
267
See Family Court of Australia, Cultural Diversity <http://www.familycourt.gov.au/wps/wcm/
connect/FCOA/home/about/CD/>.
268
See, eg, Judicial Commission of New South Wales, Equality Before the Law Bench Book
(2007), Section 4 ‘People with a Particular Religious Affiliation’.
269
Australian Human Rights Commission, Intersection Between the Law, Religion and Human
Rights: A National Roundtable Dialogue <http://www.hreoc.gov.au/partnerships/projects/
law_religion_hr.html>.
64
To the greatest extent possible, secular courts should avoid making determinations
relating to religious doctrine or theological disputes. 270 Such matters are generally best
left to debates internal to a religion, where different views may prevail at different
points in time. However, there are circumstances in which courts may need to become
involved in intra-religious disputes or apply religious laws.
65
The courts may also, in some circumstances, enforce provisions requiring the use of
religious dispute settlement mechanisms. The Supreme Court of Victoria, for
example, has held that a clause in an arbitration agreement that required the parties to
refer all claims and counterclaims to three rabbis was enforceable, as long as it
complied with the relevant Act, in particular, by ensuring that there was no breach of
procedural fairness.276
In many of these cases, the secular courts have tried to keep as strictly within the
bounds of secular law as possible (for example, with respect to the law of trusts in
determining ownership of property). In other cases, however, a more distinctively
religious case-law has developed. For example, ministers of religion are not always
treated as employees, subject to the usual industrial law protection; the relationship
between them and their religious bodies has sometimes been determined to be a
spiritual or ecclesiastical one.277 What has arguably been missing, however, is a more
thorough-going appreciation of the religious freedom principles at stake when the
courts interfere in intra-religious disputes and a recognition that a church is in a
different position to most voluntary organisations in being the manifestation of the
right to the collective aspects of religious freedom for a group of religious believers. 278
Greater deference to internal religious procedures and greater hesitancy on the part of
secular courts to enter into religious disputes might be one result of a human rights
statute that gave more formal protection to religious freedom.
276
Mond v Berger (2004) 10 VR 534.
277
See Greek Orthodox Community of SA Inc v Ermogenous (2000) 77 SASR 523, 563–76
[173]–[207] (Bleby J) for a detailed discussion of the comparative law of religious employment and
conclusions as to how it applies in Australia. See also Knowles v Anglican Church Property Trust,
Diocese of Bathurst (1999) 89 IR 47. But this is not always so: see, eg, Ermogenous v Greek
Orthodox Community of SA Inc (2002) 209 CLR 95, where the High Court upheld an industrial
magistrate’s decision to award unpaid annual and long service leave to the Archbishop of the
autocephalous Greek Orthodox Church in Australia.
278
For a more detailed discussion of these issues, see Mortensen, above n Error: Reference
source not found.
279
Ernst Willheim, ‘Australian Legal Procedures and the Protection of Secret Aboriginal
Spiritual Beliefs: A fundamental conflict’ in Peter Cane, Carolyn Evans and Zoe Robinson, Law and
Religion in Theoretical and Historical Context (2008) 214, 236–7.
66
He has also pointed to the far higher requirements for rationality placed on Aboriginal
religious beliefs than on other forms of religious beliefs. 280 Another scholar discusses
the ‘culture of disrespect’ that has disappointed Aboriginal people ‘with the paucity of
recognition and legal protection given to tangible and intangible aspects of Indigenous
culture and religion.’281
There has, to date, been no comprehensive engagement by the Western legal system
with the indigenous legal system and indigenous religious beliefs. Issues have been
dealt with in a piecemeal fashion. There is a need for better consideration of the
manner in which the two systems could interact in a way that is more respectful of the
religion of Aboriginal people. Given that such a consideration could only be
undertaken properly with full inclusion of indigenous groups, it would not be proper
to speculate further here about what the practical outcomes of such an engagement
would be. However, legal protection for the religious freedom of indigenous people
and recognition of indigenous religion in the courts are areas where there is currently
insufficient development in Australian law.
The recognition of religious legal systems by the dominant legal system is also likely
to become an issue with other religious groups. In particular, there is a question over
the extent to which the formal legal system should acknowledge the existence at
present of informal Islamic law processes for settlements of legal disputes, marriage
and divorce, etc. and whether any of those methods should be formalised. 282 This
question of the formal recognition of Islamic law has led to heated debate, both inside
and outside the Muslim communities, in places where it has been proposed. 283 It is not
discussed in detail here, but rather flagged as an issue that will likely require more
comprehensive consideration in the future.
7.6 CONCLUSION
Courts deal with people from a wide variety of religions every day. In a multi-
religious society, it strengthens the legal system for people from a wide variety of
religious backgrounds to take part in legal proceedings as judges, lawyers, jurors and
court officials. It is also important that the legal system treats all participants in legal
disputes fairly, and ensures that they are able to participate fully and equally in those
disputes. Rules around issues such as oaths/affirmations or the wearing of particular
garments need to be flexible enough to ensure that everyone can participate in legal
proceedings with as little intrusion on their freedom of religion or belief as possible,
without imperilling the right to a fair trial and open justice.
More complicated issues arise over the way in which the legal system deals with
intra-religious disputes or in acknowledging other, religious legal systems that exist in
Australia. While a detailed discussion of how the law does and should respond to
280
Ibid 214.
281
Megan Davis, ‘A Culture of Disrespect: Indigenous Peoples and Australian Public
Institutions’ (2006) 8 UTS Law Review 135, 135.
282
Ann Black, ‘Accommodating Shariah Law in Australia’s Legal System: Can we? Should we?’
(2008) 33 Alternative Law Journal 214.
283
When the Archbishop of Canterbury proposed this idea for the United Kingdom, it sparked off
a worldwide debate: see Dr Rowan Williams, ‘Civil and Religious Law in England: A Religious
Perspective’ (Foundation lecture at the Royal Courts of Justice, London, 7 February 2008)
<http://archbishopofcanterbury.org/1575>.
67
these issues is beyond the scope of this report, the current approach of the courts
leaves space for a fairly significant intrusion of secular courts into religious disputes
and arguably too little understanding of the importance of religion in areas such as
claims over sites sacred to indigenous people.
68
8 APPENDIX: EXTRACTS FROM SELECTED INTERNATIONAL
INSTRUMENTS ON RELIGIOUS FREEDOM
8.1 HUMAN RIGHTS TREATIES
8.1.1 International Covenant on Civil and Political Rights, opened for signature 16
December 1966, 999 UNTS 171, arts 2, 4, 18, 20, 24, 26, 27 (entered into
force 23 March 1976) (‘ICCPR’)
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
Article 4
1. In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations under the present Covenant to
the extent strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations under international law and
do not involve discrimination solely on the ground of race, colour, sex, language,
religion or social origin.
Article 18
2. No one shall be subject to coercion which would impair his freedom to have
or to adopt a religion or belief of his choice.
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4. The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the religious and
moral education of their children in conformity with their own convictions.
Article 20
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right to such
measures of protection as are required by his status as a minor, on the part of his
family, society and the State.
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall prohibit
any discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
Article 27
Article 1
1. For the purpose of this Convention, the term "discrimination" includes any
distinction, exclusion, limitation or preference which, being based on race, colour,
sex, language, religion, political or other opinion, national or social origin, economic
condition or birth, has the purpose or effect of nullifying or impairing equality of
treatment in education and in particular:
70
(b) Of limiting any person or group of persons to education of an inferior
standard;
Article 2
Article 5
71
…
Article 2
States Parties condemn discrimination against women in all its forms, agree to
pursue by all appropriate means and without delay a policy of eliminating
discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their
national constitutions or other appropriate legislation if not yet
incorporated therein and to ensure, through law and other appropriate
means, the practical realization of this principle;
72
8.1.4 Convention on the Rights of the Child, opened for signature 20 November
1989, 1577 UNTS 3, arts 2, 14, 20, 29 (entered into force 2 September
1990) (‘CROC’)
Article 2
1. States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any kind,
irrespective of the child's or his or her parent's or legal guardian's race, colour, sex,
language, religion, political or other opinion, national, ethnic or social origin,
property, disability, birth or other status.
Article 14
1. States Parties shall respect the right of the child to freedom of thought,
conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when
applicable, legal guardians, to provide direction to the child in the exercise of his or
her right in a manner consistent with the evolving capacities of the child.
Article 20
2. States Parties shall in accordance with their national laws ensure alternative
care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law,
adoption or if necessary placement in suitable institutions for the care of children.
When considering solutions, due regard shall be paid to the desirability of continuity
in a child's upbringing and to the child's ethnic, religious, cultural and linguistic
background.
Article 29
1. States Parties agree that the education of the child shall be directed to:
73
(d) The preparation of the child for responsible life in a free society, in the
spirit of understanding, peace, tolerance, equality of sexes, and
friendship among all peoples, ethnic, national and religious groups and
persons of indigenous origin
Article 5
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status. Furthermore,
no distinction shall be made on the basis of the political, jurisdictional or international
status of the country or territory to which a person belongs, whether it be independent,
trust, non-self-governing or under any other limitation of sovereignty.
Article 16
1. Men and women of full age, without any limitation due to race, nationality
or religion, have the right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution.
74
Article 18
Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.
Article 26
Article 1
2. No one shall be subject to coercion which would impair his freedom to have
a religion or belief of his choice.
Article 2
2. For the purposes of the present Declaration, the expression "intolerance and
discrimination based on religion or belief" means any distinction, exclusion,
restriction or preference based on religion or belief and having as its purpose or as its
effect nullification or impairment of the recognition, enjoyment or exercise of human
rights and fundamental freedoms on an equal basis.
75
Article 3
Article 4
2. All States shall make all efforts to enact or rescind legislation where
necessary to prohibit any such discrimination, and to take all appropriate measures to
combat intolerance on the grounds of religion or other beliefs in this matter.
Article 5
1. The parents or, as the case may be, the legal guardians of the child have the
right to organize the life within the family in accordance with their religion or belief
and bearing in mind the moral education in which they believe the child should be
brought up.
2. Every child shall enjoy the right to have access to education in the matter of
religion or belief in accordance with the wishes of his parents or, as the case may be,
legal guardians, and shall not be compelled to receive teaching on religion or belief
against the wishes of his parents or legal guardians, the best interests of the child
being the guiding principle.
3. The child shall be protected from any form of discrimination on the ground
of religion or belief. He shall be brought up in a spirit of understanding, tolerance,
friendship among peoples, peace and universal brotherhood, respect for freedom of
religion or belief of others, and in full consciousness that his energy and talents
should be devoted to the service of his fellow men.
4. In the case of a child who is not under the care either of his parents or of
legal guardians, due account shall be taken of their expressed wishes or of any other
proof of their wishes in the matter of religion or belief, the best interests of the child
being the guiding principle.
76
Article 6
(c) To make, acquire and use to an adequate extent the necessary articles
and materials related to the rites or customs of a religion or belief;
(f) To solicit and receive voluntary financial and other contributions from
individuals and institutions;
Article 7
The rights and freedoms set forth in the present Declaration shall be accorded
in national legislation in such a manner that everyone shall be able to avail himself of
such rights and freedoms in practice.
Article 8
77
8.2.3 Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, GA Res 47/135, annex, 47 UN GAOR
Supp (No 49), arts 1, 2, 4, UN Doc A/47/49 (1992)
Article 1
1. States shall protect the existence and the national or ethnic, cultural,
religious and linguistic identity of minorities within their respective territories and
shall encourage conditions for the promotion of that identity.
Article 2
Article 4
78
8.3 HUMAN RIGHTS COMMITTEE GENERAL COMMENTS
The full text versions of the following Human Rights Committee Comments can be
found at http://www2.ohchr.org/english/bodies/hrc/comments.htm.
8.3.1 United Nations Human Rights Committee, General Comment No 22: The
Right to Freedom of Though, Conscience and Religion (Art 18), UN Doc
CCPR/C/21/Rev.1/Add.4 (1993)
1. The right to freedom of thought, conscience and religion (which includes the
freedom to hold beliefs) in article 18.1 is far-reaching and profound; it encompasses
freedom of thought on all matters, personal conviction and the commitment to
religion or belief, whether manifested individually or in community with others. The
Committee draws the attention of States parties to the fact that the freedom of thought
and the freedom of conscience are protected equally with the freedom of religion and
belief. The fundamental character of these freedoms is also reflected in the fact that
this provision cannot be derogated from, even in time of public emergency, as stated
in article 4.2 of the Covenant.
2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not
to profess any religion or belief. The terms "belief" and "religion" are to be broadly
construed. Article 18 is not limited in its application to traditional religions or to
religions and beliefs with institutional characteristics or practices analogous to those
of traditional religions. The Committee therefore views with concern any tendency to
discriminate against any religion or belief for any reason, including the fact that they
are newly established, or represent religious minorities that may be the subject of
hostility on the part of a predominant religious community.
79
priests and teachers, the freedom to establish seminaries or religious schools and the
freedom to prepare and distribute religious texts or publications.
5. The Committee observes that the freedom to "have or to adopt" a religion or belief
necessarily entails the freedom to choose a religion or belief, including the right to
replace one's current religion or belief with another or to adopt atheistic views, as well
as the right to retain one's religion or belief. Article 18.2 bars coercion that would
impair the right to have or adopt a religion or belief, including the use of threat of
physical force or penal sanctions to compel believers or non-believers to adhere to
their religious beliefs and congregations, to recant their religion or belief or to
convert. Policies or practices having the same intention or effect, such as, for
example, those restricting access to education, medical care, employment or the rights
guaranteed by article 25 and other provisions of the Covenant, are similarly
inconsistent with article 18.2. The same protection is enjoyed by holders of all beliefs
of a non-religious nature.
6. The Committee is of the view that article 18.4 permits public school instruction in
subjects such as the general history of religions and ethics if it is given in a neutral
and objective way. The liberty of parents or legal guardians to ensure that their
children receive a religious and moral education in conformity with their own
convictions, set forth in article 18.4, is related to the guarantees of the freedom to
teach a religion or belief stated in article 18.1. The Committee notes that public
education that includes instruction in a particular religion or belief is inconsistent with
article 18.4 unless provision is made for non-discriminatory exemptions or
alternatives that would accommodate the wishes of parents and guardians.
8. Article 18.3 permits restrictions on the freedom to manifest religion or belief only if
limitations are prescribed by law and are necessary to protect public safety, order,
health or morals, or the fundamental rights and freedoms of others. The freedom from
coercion to have or to adopt a religion or belief and the liberty of parents and
guardians to ensure religious and moral education cannot be restricted. In interpreting
the scope of permissible limitation clauses, States parties should proceed from the
need to protect the rights guaranteed under the Covenant, including the right to
equality and non-discrimination on all grounds specified in articles 2, 3 and 26.
Limitations imposed must be established by law and must not be applied in a manner
that would vitiate the rights guaranteed in article 18. The Committee observes that
paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on
grounds not specified there, even if they would be allowed as restrictions to other
rights protected in the Covenant, such as national security. Limitations may be applied
only for those purposes for which they were prescribed and must be directly related
and proportionate to the specific need on which they are predicated. Restrictions may
not be imposed for discriminatory purposes or applied in a discriminatory manner.
The Committee observes that the concept of morals derives from many social,
philosophical and religious traditions; consequently, limitations on the freedom to
80
manifest a religion or belief for the purpose of protecting morals must be based on
principles not deriving exclusively from a single tradition. Persons already subject to
certain legitimate constraints, such as prisoners, continue to enjoy their rights to
manifest their religion or belief to the fullest extent compatible with the specific
nature of the constraint. States parties' reports should provide information on the full
scope and effects of limitations under article 18.3, both as a matter of law and of their
application in specific circumstances.
11. Many individuals have claimed the right to refuse to perform military service
(conscientious objection) on the basis that such right derives from their freedoms
under article 18. In response to such claims, a growing number of States have in their
laws exempted from compulsory military service citizens who genuinely hold
religious or other beliefs that forbid the performance of military service and replaced
it with alternative national service. The Covenant does not explicitly refer to a right to
conscientious objection, but the Committee believes that such a right can be derived
from article 18, inasmuch as the obligation to use lethal force may seriously conflict
with the freedom of conscience and the right to manifest one's religion or belief.
When this right is recognized by law or practice, there shall be no differentiation
among conscientious objectors on the basis of the nature of their particular beliefs;
likewise, there shall be no discrimination against conscientious objectors because they
have failed to perform military service. The Committee invites States parties to report
on the conditions under which persons can be exempted from military service on the
81
basis of their rights under article 18 and on the nature and length of alternative
national service.
2. Article 20 of the Covenant states that any propaganda for war and any advocacy
of national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence shall be prohibited by law. In the opinion of the Committee,
these required prohibitions are fully compatible with the right of freedom of
expression as contained in article 19, the exercise of which carries with it special
duties and responsibilities. The prohibition under paragraph 1 extends to all forms
of propaganda threatening or resulting in an act of aggression or breach of the
peace contrary to the Charter of the United Nations, while paragraph 2 is directed
against any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence, whether such propaganda or
advocacy has aims which are internal or external to the State concerned. The
provisions of article 20, paragraph 1, do not prohibit advocacy of the sovereign
right of self-defence or the right of peoples to self-determination and
independence in accordance with the Charter of the United Nations. For article 20
to become fully effective there ought to be a law making it clear that propaganda
and advocacy as described therein are contrary to public policy and providing for
an appropriate sanction in case of violation. The Committee, therefore, believes
that States parties which have not yet done so should take the measures necessary
to fulfil the obligations contained in article 20, and should themselves refrain from
any such propaganda or advocacy.
8.3.3 United Nations Human Rights Committee, General Comment No 23: The
Rights of Minorities (Art 27), UN Doc CCPR/C/21/Rev.1/Add.5 (1994)
1. Article 27 of the Covenant provides that, in those States in which ethnic, religious
or linguistic minorities exist, persons belonging to these minorities shall not be denied
the right, in community with the other members of their group, to enjoy their own
culture, to profess and practise their own religion, or to use their own language. The
Committee observes that this article establishes and recognizes a right which is
conferred on individuals belonging to minority groups and which is distinct from, and
additional to, all the other rights which, as individuals in common with everyone else,
they are already entitled to enjoy under the Covenant.
...
4. The Covenant also distinguishes the rights protected under article 27 from the
guarantees under articles 2.1 and 26. The entitlement, under article 2.1, to enjoy the
rights under the Covenant without discrimination applies to all individuals within the
82
territory or under the jurisdiction of the State whether or not those persons belong to a
minority. In addition, there is a distinct right provided under article 26 for equality
before the law, equal protection of the law, and non-discrimination in respect of rights
granted and obligations imposed by the States. It governs the exercise of all rights,
whether protected under the Covenant or not, which the State party confers by law on
individuals within its territory or under its jurisdiction, irrespective of whether they
belong to the minorities specified in article 27 or not. Some States parties who claim
that they do not discriminate on grounds of ethnicity, language or religion, wrongly
contend, on that basis alone, that they have no minorities.
5.1. The terms used in article 27 indicate that the persons designed to be protected are
those who belong to a group and who share in common a culture, a religion and/or a
language. Those terms also indicate that the individuals designed to be protected need
not be citizens of the State party. In this regard, the obligations deriving from article
2.1 are also relevant, since a State party is required under that article to ensure that the
rights protected under the Covenant are available to all individuals within its territory
and subject to its jurisdiction, except rights which are expressly made to apply to
citizens, for example, political rights under article 25. A State party may not,
therefore, restrict the rights under article 27 to its citizens alone.
6.2. Although the rights protected under article 27 are individual rights, they depend
in turn on the ability of the minority group to maintain its culture, language or
religion. Accordingly, positive measures by States may also be necessary to protect
the identity of a minority and the rights of its members to enjoy and develop their
culture and language and to practise their religion, in community with the other
members of the group. In this connection, it has to be observed that such positive
measures must respect the provisions of articles 2.1 and 26 of the Covenant both as
regards the treatment between different minorities and the treatment between the
persons belonging to them and the remaining part of the population. However, as long
as those measures are aimed at correcting conditions which prevent or impair the
enjoyment of the rights guaranteed under article 27, they may constitute a legitimate
83
differentiation under the Covenant, provided that they are based on reasonable and
objective criteria.
9. The Committee concludes that article 27 relates to rights whose protection imposes
specific obligations on States parties. The protection of these rights is directed
towards ensuring the survival and continued development of the cultural, religious
and social identity of the minorities concerned, thus enriching the fabric of society as
a whole. Accordingly, the Committee observes that these rights must be protected as
such and should not be confused with other personal rights conferred on one and all
under the Covenant. States parties, therefore, have an obligation to ensure that the
exercise of these rights is fully protected and they should indicate in their reports the
measures they have adopted to this end.
8.3.4 United Nations Human Rights Committee, General Comment No 18: Non-
Discrimination, as contained in Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies, UN
Doc HRI/GEN/1/Rev.8 (2006)
1. Non-discrimination, together with equality before the law and equal protection of
the law without any discrimination, constitute a basic and general principle relating to
the protection of human rights. Thus, article 2, paragraph 1, of the International
Covenant on Civil and Political Rights obligates each State party to respect and
ensure to all persons within its territory and subject to its jurisdiction the rights
recognized in the Covenant without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth
or other status. Article 26 not only entitles all persons to equality before the law as
well as equal protection of the law but also prohibits any discrimination under the law
and guarantees to all persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.
5. The Committee wishes to draw the attention of States parties to the fact that the
Covenant sometimes expressly requires them to take measures to guarantee the
equality of rights of the persons concerned. For example, article 23, paragraph 4,
84
stipulates that States parties shall take appropriate steps to ensure equality of rights as
well as responsibilities of spouses as to marriage, during marriage and at its
dissolution. Such steps may take the form of legislative, administrative or other
measures, but it is a positive duty of States parties to make certain that spouses have
equal rights as required by the Covenant. In relation to children, article 24 provides
that all children, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, have the right to such measures of
protection as are required by their status as minors, on the part of their family, society
and the State.
7. While these conventions deal only with cases of discrimination on specific grounds,
the Committee believes that the term "discrimination" as used in the Covenant should
be understood to imply any distinction, exclusion, restriction or preference which is
based on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status, and which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by
all persons, on an equal footing, of all rights and freedoms.
…
85